Thompson v. McAllen Federated Woman's Bldg. Corp.

• Decision Date: 22 September 1954
• Docket Number: No. 12737,12737
• Citation: 273 S.W.2d 105
• Parties: Chas. E. THOMPSON, Independent Executor, Appellant, v. McALLEN FEDERATED WOMAN'S BUILDING CORPORATION, Appellee.
• Court: Texas Court of Appeals

Page 105

273 S.W.2d 105

Chas. E. THOMPSON, Independent Executor, Appellant, v. McALLEN FEDERATED WOMAN'S BUILDING CORPORATION, Appellee.

No. 12737.

Court of Civil Appeals of Texas, San Antonio.

Sept. 22, 1954.

Rehearing Denied Oct. 27, 1954.

Chas. E. Thompson, F. E. Butler, McAllen, for appellant.

Ewers, Cox & Toothaker, Donald W. Howser, McAllen, for appellee.

NORVELL, Justice.

McAllen Federated Woman's Building Corporation, as plaintiff, brought suit against Chas. E. Thompson, as independent executor of the estate of Anna M. Kelsey, deceased. Plaintiff alleged that 'on or about the 10th day of March, 1952, there was donated to Plaintiff by Anna M. Kelsey the sum of One Thousand Dollars ($1,000.00), for the purpose of assisting in the cost of certain additions and improvements then contemplated by Plaintiff to be made on its Woman's Building at McAllen, Texas; that the said Anna M. Kelsey advised Plaintiff that she had recently sold some property in Starr County, Texas, and that she was gladly giving it One Thousand Dollars ($1,000.00) toward this building project, and that when Plaintiff needed the money in such construction it was to call upon her and she would issue a check therefor.'

It was further stated in the petition that the improvements upon the building were completed during the latter part of September, but that thereafter, until her death, 'the said Anna M. Kelsey was unable to be contacted by Plaintiff or issue her check in payment of such pledge * * *.'

The executor was for the opinion that the claim could not legally be paid because of the provisions of Article 3998, Vernon's Ann.Tex.Stats., and accordingly rejected the same. Suit was thereupon filed and judgment for $1,000 rendered against the executor.

There is no dispute or contradition in the evidence. Mrs. F. L. Rawls, a member of the Federated Woman's Club of McAllen, testified that Miss Kelsey had theretofore contributed about $6,700 to the Club, and her account of the March conversation with Miss Kelsey was in substantial accord with the allegations of the petition. It appears that another lady accompanied Mrs. Rawls when she called upon Miss Kelsey. This witness testified that Mrs. Rawls' account of the transaction was substantially correct.

The president of the Club testified that the minutes of the organization disclosed that on April 29, 1952, Mrs. Rawls announced plans to construct a porch across the south end of the building at the approximate cost of $2,500, and reported that Miss Kelsey had pledged $1,000 toward the cost of the same. The president further testified that except for Miss Kelsey's promise or pledge, the improvements to the building would not have been undertaken.

Upon the trial objection was made to the receiving of much of the testimony above outlined, on the basis of Article 3716, Vernon's Ann.Tex.Stats., commonly referred to as the dead man's statute. No express ruling on the point was made by the trial court, but the objection was carried along with the case. The matter becomes material, however, in considering the sufficiency of the evidence. In our opinion the testimony was properly received. Although the witnesses may have been officers or agents of the appellee corporation, it has been settled that the statute has no application to such persons. Colonial & United States Mortgage Co. v. Thedford, 21 Tex.Civ.App. 254, 51 S.W. 263; San Antonio Light Publishing Co. v. Moore, 46 Tex.Civ.App. 259, 101 S.W. 867; Williams v. Farmers' Nat. Bank, Tex.Civ.App., 201 S.W. 1083; Chastain v. Texas Christian Missionary Society, Tex.Civ.App., 78 S.W.2d 728; Maurice Cheek, Transactions with Decedents, 5 Texas Law Review, 149, 1. c. 156.

The executor, as appellant in this Court, contends that the evidence indicates no more than an uncompleted gift. If this view of the case be correct, it can hardly be gainsaid that the judgment should be reversed. Article 3998 provides that, 'No gift of any goods or chattels shall be valid unless by deed or will, duly acknowledged or proven up and recorded, or unless actual possession shall have come to, and remained with, the donee or some one claiming under him.' See also, Wells v. Sansing, 151 Tex. 36, 245 S.W.2d 964; Harmon v. Schmitz, Tex.Com.App., 39 S.W.2d 587. The delivery of a check is not a completed gift, Bridewell v. Clay, Tex.Civ.App., 185 S.W.2d 170, wr. ref., hence it follows that a promise to deliver a check in the future stands in the same category.

The appellee, however, relies upon the theory of a subscription rather than a gift. It is said in the brief that, 'During her lifetime, Miss Kelsey was solicited for funds for the construction of an addition to the McAllen Federated Woman's Building Corporation and promised to pay $1,000.00 on the costs of the construction, delivery of such amount to be made when it was needed. Relying upon Miss Kelsey's promise, Plaintiff constructed the proposed addition to the club building, but, due to Miss Kelsey's illness and subsequent death, she could not be contacted for payment.'

Appellant in reply contends that the case below was pleaded and tried upon a theory of donation rather than one of subscription. In our opinion the petition contains allegations which would support a recovery upon the theory that a subscription was involved, and we therefore dispose of this appeal upon that basis.

It is not necessary for a subscription agreement to be in writing in order to be enforcible. Lewis v. Durham, 205 Ky. 403, 265 S.W. 934; 83 C.J.S., Subscriptions, § 2, p. 732; 50 Am.Jur. 779, Subscriptions, § 4. The fact that at the time the promise to contribute was made by Miss Kelsey there was no valid consideration then in existence does not necessarily defeat a recovery thereon. In Hopkins v. Upshur, 1857, 20 Tex. 89, Mr. Justice Roberts, speaking for the Supreme Court, said:

'At the time Upshur made and delivered the subscription to Durham, it is true that the vestry did not and had not bound themselves to build the church. And it is also true that there was no consideration then executed. It may well be admitted that there was at that time no cause of action against Upshur. When and by what acts, then, did it accrue? The answer is, when the vestry assumed liabilities and incurred expenses in building the church, upon the faith of the subscription. In (Trustees of) Amherst Academy v. Coles (Cowls), 6 Pick. (Mass. 427), 433, Parker, chief Justice, rules, that if by means of a solemn promise to pay, the body, to whom the promisor has pledged his word, should encounter expense, or assume legal liabilities, this was a sufficient consideration to support such a promise.

'It is not necessary that a consideration should exist at the time of subscription, which is in the nature of a proposition, and the performance of the work is the acceptance of the proposition, and also the consideration, which supports it, as a valid binding proposal. Barnes v. Perine, 2(9) Barb. (N.Y.) 202.'

The rule of Hopkins v. Upshur has not be departed from in this State. In Rouff v. Washington & Lee University, Tex.Civ.App., 48 S.W.2d 483, it was cited as a controlling Texas authority upon the point, and a writ of error was refused by the Supreme Court. In his Texas notes to the American Law Institute's Restatement of the Law of Contracts, Dean Ira P. Hildebrand cites Hopkins v. Upshur and Rouff v. Washington & Lee University, as supporting Section 90 of the Restatement of Contracts, which reads as follows:

'A promise which the promisor should reasonably expect to induce action or forbearance of a definite and substantial character on the part of the promisee and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise.'

While some inconsistencies in court advanced theories supporting recoveries upon charitable subscriptions have been noted by leading text book writers, it seems that judgments have been repeatedly rendered upon such agreements under facts similar to those disclosed by the report of Hopkins v. Upshur. Both Williston and Corbin contain instructive discussions relating to these subscription agreements. Williston on Contracts, § 116, Corbin on Contracts, §§ 198 et seq. See also, 83 C.J.S., Subscriptions, § 5, b(2), p. 736; and 50 Am.Jur. 784, Subscriptions, § 11.

There is, however, one phase of the case upon which the evidence is not satisfactory and is insufficient. The pertinent rule is well stated in American Jurisprudence, as follows:

'The death of the...