Williams v. Rogan

• Decision Date: 18 May 1883
• Docket Number: Case No. 4860.
• Citation: 59 Tex. 438
• Court: Texas Supreme Court
• Parties: WILEY WILLIAMS v. J. C. ROGAN ET AL.

59 Tex. 438

WILEY WILLIAMS

v.J. C. ROGAN ET AL.

Case No. 4860.

Supreme Court of Texas.

May 18, 1883.

APPEAL from San Saba. Tried below before R. H. Ward, Esq., special judge.

Geo. F. Pendexter and W. M. Allison, for appellant, cited on the right of appellant to withdraw his subscription, Pars. on Cont., vol. 1, pp. 452-4 (5th ed.). On laches in building, 27 Tex., 113.

Carleton & Morris, for appellees.

STAYTON, ASSOCIATE JUSTICE.

In 1879, the district conference of the Methodist Episcopal Church South, in which district was situated the county of San Saba, proposed to the inhabitants of six competing counties, of which San Saba county was one, to establish a high school in such one of the competing counties as would contribute the sum of $5,000 to assist in erecting houses, etc., for such school.

In the month of June of that year, a subscription was raised in San Saba county for that purpose, to which the appellant subscribed the sum of $200, to be paid in four equal instalments, the first to be paid on or before the 1st September, 1879, the next January 1, 1880, another May 1, 1880, and the last on September 1, 1880.

The payments were to be made, under the terms of the subscription, to such persons as the conference might appoint to receive it.

The requisite sum was subscribed, and on the 19th day of July, 1879, the conference accepted the subscription, and agreed to locate the school and build the necessary house at the town of San Saba, in accordance with the terms of the subscription. Trustees to receive the money and conduct the business were appointed by the conference, and it is not questioned that the appellees are the trustees so appointed or their successors. On the 10th of September, 1879, the trustees met and made a small expenditure for stationery and other purposes.

Another meeting of the trustees was had on the 20th of that month, for the purpose of determining, by the vote of the subscribers, at which of two competing points in the town of San Saba the school house should be erected, and at that meeting the appellant, by an authorized proxy, voted. The building of the house, for some reason not fully explained in the record, was postponed, and the building was not actually commenced until some time in the year 1881, but it was subsequently completed.

Some time in the fall or winter of 1879, but after the proposition of the subscribers had been accepted by the conference, and the place for the erection of the house had been agreed upon and a small expenditure of money made, the appellant made known to the trustees his determination not to comply with his subscription, and he now claims that he was thereby released from all obligation to pay it.

This is not the ordinary case of a subscription to some charitable or public purpose in which there are no contracting parties except the subscribers; but the subscribers are the parties upon the one side, and the district conference the party upon the other.

Upon the acceptance of the proposition of the conference, the subscribers became bound, as did the conference upon its acceptance of the subscription and agreement, to build in accordance with the terms of the subscription. There was, then, a mutuality of engagement, so that each party had the right to hold the other to a binding agreement, and it became so previous to or even without performance, and either party might enforce it.

The rule is thus laid down by Mr. Parsons: “The party making the promise is bound to nothing until the promisee, within a reasonable time, engages to do, or else does or begins to do, the thing which is the condition of the first promise. Until such engagement or such doing, the promisor may withdraw his promise, because there is no mutuality, and therefore no consideration for it. But after an engagement upon the part of the promisee which is sufficient to bind him, then the promisor is bound also, because there is now a promise for a promise, with entire mutuality of obligation.” 1 Parsons on Contracts, § 450.

The parties have concurred in expressing the common intention, and this with a view that such expression should determine their respective rights and duties; and this, in legal contemplation, constitutes an agreement which, if supported by a sufficient consideration, makes a legal and binding contract.

The several...