Trustees of Maine Cent. Inst. v. Haskell

• Decision Date: 11 January 1882
• Citation: 73 Me. 140
• Parties: TRUSTEES OF MAINE CENTRAL INSTITUTE v. ORREN S. HASKELL and another, executors of GOING HATHORN.
• Court: Maine Supreme Court

73 Me. 140

TRUSTEES OF MAINE CENTRAL INSTITUTE v. ORREN S. HASKELL and another, executors of GOING HATHORN.

Supreme Judicial Court of Maine.

January 11, 1882

ON REPORT.

Assumpsit against the executors of Going Hathorn to recover the following subscription of the testator:

" Pittsfield, August 27th, 1867.

We will pay to the order of the trustees of Maine Central Institute the sums set against our names, in six years from date, to make up a building fund for said institution.

Names. Dollars.

Going Hathorn $1000.00"

* * * * * *

The material facts found by the court are stated in the opinion.

S C. Strout, H. W. Gage and F. S. Strout, for the plaintiff, cited: Cummings v. Dennett, 26 Me. 399; Williams v. Hagar, 50 Me. 22; Private Laws, 1866, c 17; Ladies' Institute v. French, 16 Gray 201; Williams College v. Danforth, 12 Pick. 544; Trustees of Fryeburg v. Ripley, 6 Me. 442; Fisher v. Ellis, 3 Pick. 321; Trustees, & c. v. Stetson, 5 Pick. 507; Amherst Academy v. Cowls, 6 Pick. 432; Limerick Academy v. Davis, 11 Mass. 113; Boutell v. Cowdin, 9 Mass. 254; Forster v. Fuller, 6 Mass. 59; Chitty Contr. 30; 1 Pars. Contr. 453; Met. Contr. 185; Cottage Street Church v. Kendall, 121 Mass. 528; Train v. Gold, 5 Pick. 385; Trustees Williams College v. Danforth, 12 Pick. 541; Thompson v. Page, 1 Met. 565; Ives v. Stillson, 6 Met. 310; Athol Music Hall v. Carey, 116 Mass. 471; Berkeley Divinity School v. Jarvis, 32 Conn. 421; Barnes v. Perine, 12 N.Y. 18; Walker v. Eames, 9 Cush. 539; Cong. Society v. Perry, 6 N.H. 164; George v. Harris, 4 N.H. 533; First Religious Society v. Stone, 7 Johns. 112; M'Auley v. Bellenger, 20 Johns. 89. Upon the question of interest: Johnson v. Bland, 2 Burr. 1086; Dodge v. Perkins, 9 Pick. 384; Hall v. Huckins, 41 Me. 580; National Lancers v. Lovering, 10 Foster 511; Foster v. Bidwell, 27 Conn. 370; Adams v. Fort Plain Bank, 36 N.Y. 261; Swett v. Hooper, 62 Me. 55.

D. D. Stewart, for the defendants.

The only remedy, if it could be shown that money had actually been expended on the faith of this subscription, was by an action for money paid and expended. Farmington Academy v. Allen, 14 Mass. 175; Limerick Academy v. Davis, 11 Mass. 113; Bryant v. Goodnow, 5 Pick. 228; Mirick v. French, 2 Gray 423; Bridgewater Academy v. Gilbert, 2 Pick. 579.

The alleged subscription is utterly barren of all consideration and the case falls exactly within the case last cited above and Trustees Hamilton College v. Stewart, 1 N.Y. 581.

No case is cited by counsel, and it is believed none can be found where proof of a consideration outside the subscription itself has been held admissible and sufficient except where the terms of the subscription itself authorized and laid the foundation for such outside proof as in the cases cited by counsel.

The plaintiffs must show that they have laid out and expended money on the faith of this subscription and equaling the whole of it, and that they have not done. Mirick v. French, supra.

The counsel further contended in an able argument that the subscription had been paid.

DANFORTH J.

The first three objections raised to the maintenance of this action have already been disposed of by this court when it was considered upon demurrer. 71 Me. 487. It was then held that the special counts in the writ in all respects with a single exception not now material, were sufficient. This view of the case seems to be fully sustained by the later, if not by the earlier authorities. In a class of cases where there was in the subscription paper no promisee by name or description and possibly in a few where all the consideration was in the future, and the action could, as was supposed, be maintained after the promisee was ascertained only on the ground of a ratification of the contract by the promisor, or a payment of money by the plaintiff, it was suggested that the proper action would be for money laid out on the ground of an implied promise; and some of the declarations were framed to conform to this view. Farmington Academy v. Allen, 14 Mass. 172. Here and in other cases of the like kind cited in the argument, the paper itself does not show a completed contract. It lacks both a payee and a consideration, hence it would not alone support an action. Nevertheless in the case cited and which was sustained, it was a material element in the defendant's liability and in fact a necessary element; without it no implied promise could be inferred from the subsequent conduct of the party. This being so there can be no harm arising from its insertion in the declaration as such element adding what other elements may be necessary to make the completed contract whether express or implied. It would indeed be something new in legal procedure if a special declaration sufficient to maintain an action cannot be made when it can be maintained under a general one. Such a declaration was made in the present case.

It necessarily follows that even if the subscription paper be without consideration and insufficient of itself to support an action, a consideration outside may be averred and proved. It is too well settled in our state that the consideration for a written promise may be shown outside the written instrument to require any citation of authorities and if it can be proved under a general count, as in Farmington Academy v. Allen, certainly it can be in a special count like that in the case at bar.

But we are not prepared to admit that the subscription paper in this case " is a bare, naked promise," without any consideration whatever. It is true no consideration was actually received at the time of signing, but one is plainly implied, if not expressed, from the language used. The promise was of money for a specified purpose " to make up a building fund for said institution." This purpose was ever recognized by the law as a public charity. The promise was made to a definite payee by name, one legally competent to take, incorporated for the express purpose of carrying out the object contemplated in the promise and therefore amenable to law for negligence or abuse of the trust. It is not of course binding upon the promisor until accepted by the promisee and may up to that time be considered as a revocable promise. But when so accepted and much more when the execution of the trust has been entered upon, when money has been expended in carrying out the purpose contemplated, it becomes a completed contract binding upon both parties; the promise to pay and at least the implied promise to execute, each being a consideration for the other.

In Amherst Academy v. Cowls, 6 Pick. 427, the cases before that decided, were examined, and in the opinion, on page 438, it is said, " On this review of the cases which have occurred within this commonwealth, analogous in any degree to the case before us, we do not find that it has ever been decided, that when there are proper parties to the contract, and the promisee is capable of carrying into effect the purpose for which the promise is made, and in fact amenable to law for negligence or abuse of his trust, such a contract is void for want of consideration." Still later in Ladies' Collegiate Institute v. French et als. 16 Gray 196, a case similar to this, after referring to several cases, CHAPMAN, J., on page 201, says " It is held that by accepting such a subscription, the promisee, on his part, agrees with the subscribers, that he will hold and appropriate the funds subscribed in conformity with the terms and objects of the subscription, and thus mutual and independent promises are made, which constitute a legal and sufficient consideration for each other. They are held to rest upon a well settled principle in respect to concurrent promisees." The same in principle is Athol Music Hall Company v. Carey, 116 Mass. 471. A similar principle and one applicable to the case before us, is recognized in Church v. Kendall, 121 Mass. 528, and is thus stated on page 530, " Where one promises to pay another a certain sum of money for doing a particular thing, which is to be done before the money is paid, and the promisee does the thing, upon the faith of the promise, the promise, which was before a mere revocable offer, thereby becomes a...