Underwood v. Waldron

Subscription for public purposes: Consideration. — Where a subscription is made by which the signers promise to pay the several sums subscribed, for the .purpose of erecting a building for educational purposes, and something has been done or some liability or duty assumed, in reliance upon the subscription, in order to carry out the object, the promises are binding, and may be enforced, although no pecuniary advantage is to result to the promissors. But where, by its charter, a college was located at Spring Arbor, and a subscription was entered into for the purpose of erecting a college building therefor at Hillsdale, and it did not appear, by the subscription or otherwise, that it was designed as an inducement to the college to endeavor to obtain legislative authority to remove to Hillsdale, and it could not be lawfully removed without such authority, it was held, that the subscription, being for a purpose not authorized by law, was invalid. Pleadings: Declaration. — The declaration against one of the subscribers, after setting forth the subscription, averred that the college at Spring Arbor deoided not to use the building when completed, and the subscribers afterwards renewed their subscription, and indebtedness was incurred and the building was completed in reliance thereon. It was shown in evidence, that the renewal of the subscriptions and the erection of the building were for the benefit of a new college to be established at Hillsdale» This fact not being averred in the declaration, which only showed a subscription for the benefit of a college not located at Hillsdale, it was held, that no recovery could be had thereon.

Error to Branch Circuit. Henry Waldron, Chauncey W. Ferris and Allen Hammond, brought suit against Underwood in assumpsit, the declaration containing two counts, in substance as follows: First Count: For that, on January 26, 1853, the defendant, the plaintiffs, and certain other persons, were desirous of erecting a college building in or near the village of Hillsdale, for the benefit of themselves severally, and the defendant, in consideration thereof, and for the purpose of effecting said object, and in consideration that certain persons named did subscribe their names to the following-agreement: “We, the subscribers, severally promise to pay the sums set opposite our respective names, to the order of Henry Waldron, Chauncey W. Ferris and Allen Hammond, for the purpose of purchasing land, or erecting a college building in or near the village of Hillsdale, for the use of the Michigan Central College; dated Fayette, January 26, 1853;” and did each set opposite their names, thereto subscribed, certain sums of money specified, and in consideration that certain other persons would subscribe their names to the said agreement, and would set opposite their names certain sums of money, to be paid as therein specified, the defendant did subscribe his name thereto, and promise to pay the plaintiffs §1000 as follows: §250 in four months; §250 in eight months; §250 in twelve months, and §250 in sixteen months; that other subscribers to said instrument, who are named, did subscribe thereto in consideration, among other things, of the defendant’s subscription; yet that although the persons so subscribing have paid the amounts by them subscribed; and the plaintiffs have paid out and expended all the moneys paid them, in erecting said college building; and said building has been erected, and a large amount of indebtedness has been incurred on the faith of said subscription in erecting said college building, and plaintiffs have at all times been ready and desirous to use and expend the amount so subscribed by defendant for the purpose of paying such indebtedness? yet the said defendant refuses to pay, &c. Second Count: Sets forth the subscription in the same manner; avers that afterwards, on July 1, 1853, defendant had paid §200 of the amount subscribed by him, and the other subscribers had also paid a large amount, in all $5000, which had been expended in erecting a college building; that the Michigan Central College decided not to use the building when completed, of which the defendant had notice; that afterwards, on January 2, 1854, in consideration that the several other subscribers did then and there renew their said promises and undertakings, “he, the said defendant, undertook, and then and there faithfully promised the said plaintiffs to perform, and fulfill the said agreement in writing, in' all things on his part and behalf to be fulfilled and performed, and to pay the balance of the aforesaid sums of money, so subscribed by him as aforesaid, at the times aforesaid, tó the said plaintiffs.” And although other subscribers named have paid "the amounts subscribed by them, and plaintiffs have expended all the money so paid them in erecting said college building, and the college building has been erected; and although a large amount of indebtedness has been incurred in erecting the same, and plaintiffs have at all times been ready to use and expend the amount so subscribed by defendant for the purposes of erecting said building and ■of paying such indebtedness; yet the defendant refuses to pay, &o. Plea, the general issue. The cause was tried by the Circuit Judge without a jury, and the following is his finding of facts : “ That on the 26th day of January, 1853, the defendant and Chauncey W. Perris, William Waldron, Hewitt & McCollum, Henry Waldron, and certain other persons at the village of Hillsdale, were desirous of erecting a college building, in or near the village of Hillsdale, for the benefit of themselves severally. “ That the said defendant, for the purpose of effecting said object, and in consideration that the said Chauncey W. Ferris, William Waldron, Charles T. Mitchell, Hewitt & McCollum, and Henry Waldron, would subscribe their* names to the agreement in writing, set out in the plaintiffs’ declaration, to wit: ‘We, the subscribers, severally promise to pay the sums set opposite our respective names to the order of Henry Waldron, Chauncey W. Ferris, and, Allen Hammond, for the purpose of purchasing land, or-erecting a college building, in or near the village of Hills-dale, for the use of the Michigan Central College. Dated-Fay ette, January 26th, 1853.’ “And would set opposite their respective names, thereto-subscribed, $1,000, payable as follows, viz.: $250 payable in four months, $250 in eight months, $250 in twelve months, and $250 in sixteen months, from the date thereof. And, in consideration that certain other persons would subscribe their names to the said agreement in writing, and would set opposite their respective names, thereto-subscribed, certain sums of money, to be- paid at certain times therein mentioned, the said defendant, on or about the 26th day of January, 1853, did subscribe his name to-the said agreement, in writing, and did set opposite his name, thereto subscribed, $1,000, payable as follows, viz.: $250 in four months, $250 in eight months, $250 in twelve months, and $250 in sixteen months, from the date thereof. . “That, at the same time, the said Chauncey W. Ferris, William Waldron, Charles T. Mitchell, Hewitt & McCollum, and Henry Waldron, each subscribed their names to the said agreement in writing, and each set opposite their respective names, thereto subscribed, $1,000, payable at the same time, and in the same amounts, with the amount so as aforesaid subscribed by the said defendant. “ That the said defendant and the said Chauncey W. Ferris, William Waldron, Charles T. Mitchell, Hewitt & McCollum, and Henry Waldron, at the time they subscribed said agreement in writing, as aforesaid, did actually agree with 'each other that they would each subscribe $1,000 to said agreement in writing, as aforesaid, and would pay the same, in consideration that each of the others would subscribe the same amount to said agreement, payable at the same time, and would pay the same. And that the subscription of each, as aforesaid, was the inducement for the subscription of all the others. “That at the same time the said defendant subscribed said agreement in writing, as aforesaid, and within a short time thereafter, certain other persons subscribed their names to the said agreement in writing, and to duplicates thereof, and set opposite their names, thereto subscribed, certain sums of money, amounting, in the aggregate, to the sum of about $12,000. That many of the other persons who subscribed said agreement did so in the presence of said ■defendant, and at his request, and in consideration that he had signed it as aforesaid. “That the purpose for which said subscriptions were originally made, was for the purchasing land, or erecting a college building, in or near the village of Hillsdale, for the use of the ‘Michigan Central College.’ That the Michigan Central College referred to, was the institution of that name incorporated by act of the Legislature of the State of Michigan, approved March 19, 1845, and then -located at Spring Arbor, in Jackson county, Michigan. “That at the time of making said subscription, it was ■contemplated by the signers thereto, that said Michigan Central College should be removed to said Hillsdale, and use the premises proposed to be bought or built, and the proof of the last fact was objected to by, the plaintiffs: that the subscribers knew, at the time of making said subscription, that the right of the Michigan Central College to remove to Hillsdale had been questioned, and was opposed by some of the trustees of said college. “That on the first day of July, 1853, the said defendant had paid about $200 on his aforesaid subscription, and the said Chauncey W. Ferris, William Waldron, Charles T. Mitchell, Hewitt & McCollum, Henry Waldron, and certain other subscribers, had paid about $5,000 on their said subscriptions. “That said amounts so paid had, at that time, been paid out and expended towards erecting a college building near the said village of Hillsdale. “That about that time the Michigan Central College-decided not to use said college building when the same should be completed, of which fact the said defendant had notice. “That on or before January 1st, 1854, the idea of removing said Michigan Central College to Hillsdale, or of' using said proposed new building by said Central College, was abandoned wholly and finally. “That on the 2'7th day of September, 1853, Esbon Blackmar, who owned the land upon which said college building was being erected, conveyed said land by a sufficient deed to said defendant and certain other persons, with their knowledge and consent, upon the following trusts (among others): 1st, For the erection thereon of' college dr academical buildings, and for no other use or purpose whatsoever. 2d, To convey the said premises for the uses and purposes aforesaid, and not otherwise, and upon the express condition that the same should be-applied to no other use or purpose whatever, to such board of trustees as may be appointed by the annual conference of the Michigan Free Will Baptist yearly meeting : provided, said board of trustees shall, within ten years, from the date hereof (September 21, 1853,) be duly organized, with requisite forms to take and hold said premises,, by and under the laws of the State of Michigan. “That said defendant acted as one of the building committee for the erection of said college building, until about the 15th of October, 1853. “ That at and after the aforesaid deed of trust was. made to the said defendant and others, by said Esbon Blackmar, the said defendant consented and agreed with the plaintiffs, and with the said Chauncey W. Ferris, William Waldron, Charles T. Mitchell, Hewitt & McCollum and Henry Waldron, that said college building should be erected, and should be used and occupied according to-the terms and conditions of the aforesaid trust deed. “That on or about the 2d day of January, 1854, a public meeting of the subscribers to the aforesaid agreement in writing-, was held at the office of Mead & Pratt, in said village of Hillsdale, for the purpose of deciding whether the said subscribers should pay up their said subscriptions and proceed with the erection of said college building; and the said defendant, in consideration that the said Chauneey W. Ferris, William Waldron, Charles T. Mitchell, Hewitt & McCollum, and Henry Waldron, and certain other persons who had subscribed their names to said agreement in writing, did then and there verbally renew their aforesaid subscriptions, and did then and there verbally promise to pay them to the said plaintiffs, the said defendant did then and there promise the said plaintiffs, and the said Chauneey W. Ferris, William Waldron, Charles T. Mitchell, Hewitt & McCollum, and Henry Waldron, and the other subscribers then present, that he would pay the balance of the aforesaid subscription. That on or about the first day of January, 1856, the said defendant offered to pay the balance of the said subscription in flour, made from grown wheat. That on the l7lh day of May, 1855, the board of trustees, appointed by the annual conference of the Michigan Free Will Baptist yearly meeting, were duly organized under and by virtue of the general college laws of this State, approved February 9, 1855, with the requisite powers to take and hold real estate, under the name and style of Hillsdale College, located at Hillsdale, Michigan. That on the 15th day of December, 1855, the said defendant, and the other grantees in the aforesaid deed of trust from the said Esbon Black-mar, conveyed the said premises described in said deed, and upon which said college building was erected, by a sufficient deed to the aforesaid trustees of Hillsdale College, and to their successors in office. That on the first day of January, 1856, the said Chauneey W. Ferris, William Waldron, Charles T. Mitchell, Hewitt & McCollum, and Henry Waldron, had paid np the amount of their aforesaid subscriptions in full. That between $12,000 and $13,000 had been paid on the said subscriptions before the commencement of this suit. “That before the commencement of this suit the plaintiffs had paid out and expended all -the moneys so as aforesaid paid them on said subscription, in erecting said college buildings. “That on the first day of January, 1856, said college buildings were erected and completed in said village of Hillsdale, and ujoon the premises described in the aforesaid trust deed from Esbon Blackmar to the defendant and others, and cost between $45,000 and $50,000. That at the time of the commencement of this suit, the indebtedness contracted on the faith of the aforesaid subscriptions, and other subscriptions, in erecting said college buildings, amounted to about $2,000. “That the plaintiffs, through their treasurer, frequently called upon the defendant, before the commencement of this suit, to pay the balance of his aforesaid subscription. “That tbe persons who acted as the faculty of the Michigan Central College, at the date of the aforesaid subscriptions, viz., January 26th, 1853, did, on the Yth day of November, 1855, commence an academical and collegiate school in said college building, and continued and carried on the same up to the time of the commencement of this suit; that Hillsdale College is under the control of the same denomination that the said Michigan Central College was, at the date of said subscriptions, viz.: The Free Will Baptist denomination; and that said denomination have endowed said Hillsdale College to the amount of $90,000. “ And I further find that the total amount of payments made by the defendant, in addition to certain amounts which were credited to him, many of which were made at his request, amounts to the sum of $493,66, leaving unpaid on his subscription the sum of $504,34. To this add the interest up to the 23d of May, 1861, which is $285,44, and the amount due from him on his subscription is $791,78, for which amount the plaintiffs are entitled to judgment, with costs of suit to be taxed. “And under the pleadings, and upon such finding, I hold as follows: 1st. That the said promise of defendant was one of mutual promise, and made in consideration of like mutual promises of said other signers of said subscription paper. 2d. That said mutual promises were a good and legal consideration for each other, and that therefore the promise of the defendant was a valid promise. 3d. That said promise of said defendant is sufficiently set forth in the first count, as a mutual promise upon the consideration of the mutual promises of the other subscribers, to enable the plaintiffs to recover thereon, on the first count of the declaration. 4th. That the purpose for which the original subscription was made, viz.: The purchasing land or erecting a college building, in or near the village of Hillsdale, for the use of the Michigan Central College, was not unlawful. 5th. That after the project of removing said Michigan Central College, or using said new college building in any way, by the Michigan Central College, had been abandoned, the new verbal agreement between defendant and said other subscribers, was a new promise, based upon new facts, and the same was legal. 6th. The same constituted new mutual promises between said subscribers, of which the promise of each constituted a valid consideration for the promise of the other. 7th. That such new promise of the said defendant is sufficiently set out in the second count of the declaration to entitle the plaintiffs to recover.” To these several rulings of the Circuit Judge, exceptions were taken by the defendant.