University of Pennsylvania's Trustees v. Coxe's Exrs.

• Citation: 277 Pa. 512,121 A. 314
• Decision Date: 23 May 1923
• Docket Number: 310
• Parties: University of Pennsylvania's Trustees v. Coxe's Exrs., Appellants
• Court: Pennsylvania Supreme Court

121 A. 314

277 Pa. 512

University of Pennsylvania's Trustees v. Coxe's Exrs., Appellants

No. 310

Supreme Court of Pennsylvania

May 23, 1923

Argued April 10, 1923

Appeal, No. 310, Jan. T., 1923, by defendants, from judgment of C.P. Luzerne Co., Jan. T., 1921, No. 273, on verdict for plaintiffs, in case of Trustees of the University of Pennsylvania v. John Cadwalader, Jr., and Charles Sinkler executors of Eckley B. Coxe, Jr., deceased. Affirmed.

Assumpsit on subscription agreement. Before FULLER, P.J.

The opinion of the Supreme Court states the facts.

Directed verdict for plaintiff and judgment thereon for $45,640. Defendants appealed.

Error assigned, inter alia, was refusal of judgment n.o.v., quoting record.

The decree of the court below is affirmed.

Thomas Ridgway, with him Georgy Ross, for appellants. -- Judgment should be reversed because no consideration was created by which the balance of Mr. Coxe's subscription, an unexecuted gift, was transformed into a contractual obligation: Clapper v. Frederick, 199 Pa. 609; Kern's Est., 171 Pa. 55; Smith's Est., 237 Pa. 115.

There is no legal presumption that because several names are signed to the same subscription paper, each subscriber signed in consideration of the other signing, when nothing appears either on the face of the paper or in the evidence to show this: Phipps v. Jones, 20 Pa. 260; Phila. Med Pub. Co. v. Wolfenden, 248 Pa. 450; Fair Assn. v. Greer, 11 Pa.Super. 103; Muncy v. Green, 143 Pa. 269; Auburn Bolt Works v. Shultz, 143 Pa. 256; Hawthorn Bottle Co. v. Cribbs, 51 Pa.Super. 555; Jeannette Bottle Works v. Schall, 13 Pa.Super. 96.

A subscription for public or charitable objects, unless some act is done or expense incurred on the faith of the subscription, is revocable at the pleasure of the subscriber or by his death: Converse's Est., 240 Pa. 458; Foreign Missions v. Smith, 209 Pa. 361; Lippincott's Est., 21 Pa.Super. 214; Stuart v. Presbyterian Church, 84 Pa. 388; Helfenstein's Est., 77 Pa. 328; Ryers v. Presbyterian Congregation, 33 Pa. 114.

The legacies of $500,000 for the museum were in payment of the subscription: Wesco's App., 52 Pa. 195; Horner v. McGaughy, 62 Pa. 189.

No interest was due: Wainwright v. Bank, 72 Pa.Super. 221; Richards v. Gas Co., 130 Pa. 37; Obermyer v. Nichols, 6 Binney, 159.

Owen J. Roberts, with him Paul Bedford, for appellee. -- There was ample consideration: Converse's Est., 240 Pa. 458; Board of Foreign Missions v. Smith, 209 Pa. 361; Ryers v. Congregation, 33 Pa. 114; Hohl's Est., 19 Pa. Dist. R. 621.

The legacies were not a satisfaction of the subscription contract: Horner v. McGaughy, 62 Pa. 189; Byrne v. Byrne, 3 S. & R. 54; Gibbons v. Woodward, 3 Walker 303; Balz v. Kirchner, 192 Pa. 63; Thum's Est., 18 Pa. C.C.R. 615.

Interest was due from demand: Rayne v. Guthrie, Addison 137; Penn Safe Dep. & Trust Co. v. Thomas, 4 Pa. Dist. R. 421; Penna. Co. v. Swain, 189 Pa. 626; Blair County Directors v. Kline, 8 Pa. Dist. R. 67; Weiskircher v. Connelly, 256 Pa. 387; Thompson v. Schoch, 254 Pa. 585.

Before MOSCHZISKER, C.J., FRAZER, WALLING, SIMPSON, KEPHART and SADLER, JJ.

OPINION

MR. JUSTICE FRAZER:

Eckley B. Coxe, Jr., in his lifetime, was president of the Board of Managers of the Museum of the University of Pennsylvania and, to enable the institution to raise funds, decedent, on January 30, 1912, signed the following writing: "We, the subscribers, agree to pay to the treasurer for the time-being of the University of Pennsylvania, at such times as he shall request, unless other times are mentioned at our signatures, the sums respectively set opposite our names, for the University Museum." While this did not specify the precise object of the subscription, it seems to be conceded the funds provided for in the writing were to be used in constructing an addition to the museum. Decedent, the first to sign the paper, made a subscription of $100,000. The second subscription, that of Charles C. Harrison, was obtained at the same time and this was followed by others at various times from February 27, 1912, to February 19, 1915, the amount subscribed aggregating $305,000. Decedent paid during his lifetime, as requested by the treasurer, the following amounts: September 3, 1914, $20,000; February 6, 1915, $20,000; April 29, 1915, $20,000. He died September 20, 1916, there being at that time $40,000 of his subscription unpaid, which amount had not been called for by the treasurer. Subsequent to his death, a demand made for payment of the balance was refused by his executors, who claimed, in support of their refusal to pay, the subscription was not a binding legal obligation but merely a promise made without consideration and revoked by the death of the subscriber before actual payment. The court below declined to take this view of the law and directed a verdict for plaintiff for the full amount subscribed, with interest from the time demand for payment was made and refused. The executors appealed.

The trustees of the museum, in reliance upon the subscriptions made by decedent and others, proceeded to contract for the structure contemplated and expended approximately $280,000 for that purpose. The work was temporarily delayed, due in part to the high cost of labor and materials and in part to the fact that proceedings were instituted and pending against the trustees of the University of Pennsylvania by the Commercial Museums to determine the ownership of the land upon which the building was intended to be erected. For these reasons the treasurer delayed calling for the balance of the subscription. The proceeding mentioned being finally decided in favor of the University (251 Pa. 115) a notice calling for payment of the unpaid balance of subscriptions was sent each subscriber, which stated work on the building would be resumed at the earliest practicable time.

The trustees, relying upon the subscriptions of decedent and others, proceeded to incur obligations in carrying out the purposes for which the funds were intended and, in fact, had expended the greater part of the total amount subscribed. This action on their part constituted a consideration which made the gift...