New Jersey Orthopædic Hospital v. Wright

*463 The opinion of the court was delivered by PARKER, J.

This is an action upon a subscription to a charity. The trial judge ordered a nonsuit upon the ground that the promise, concededly made, had no consideration to support it, during the lifetime of the subscriber, and, consequently, lapsed by her death. It was urged also as a ground of nonsuit that there had been no acceptance of the subscription, but the court held, and rightly, as we view it, that the jury were entitled to find that the power of the “campaign committee” to solicit and obtain subscriptions reasonably implied the power to accept them, and that the committee had in fact accepted this one; and confined the ground of nonsuit to absence of consideration.

We conclude that the question of consideration was for the jury, for reasons presently to be stated.

The subscriber was Mrs. Jessie R. Barr, who died on January 2d, 1917. She had been greatly interested, according to the testimony, in the campaign for a fund to enlarge and improve the hospital building of plaintiff corporation, and had told members of the committee to call upon her when the campaign started, as she intended to contribute. They called, but at an inopportune time, and later slie wrote for them to come again, which they did. She then said she had decided to give $5,000 to be used -to build an operating room, and the solicitors told her they feared this application of the money would be impracticable, as a Mr. Graves had already asked for that privilege. She then requested the solicitors to see Mr. Graves and arrange with him, if possible, to step aside in her favor. They did so and obtained his consent, returned to Mrs. Barr and told her that her subscription would be used for the operating room, winch would be named as she wished, and thereupon slie authorized one of them to sign the subscription card with the signature “A Friend,” so that her name would not become public. This was done and the corn-mil tee left, and a day or two later mailed her a formal ac-knowiedgment of the subscription.

One inference that the jury might legitimately draw from this evidence is that Mrs. Barr based her subscription oil the *464 agreement, first, that the money, while part of the general fund, was to be specifically applied to a stated purpose, viz., the building of an operating room; secondly, that the operating room was to bear a name suggested by her; thirdly, that she .would contribute if the committee would obtain the waiver by Mr. Graves of his prior claim on the room, and that they actually did obtain that waiver. Any one of these things would be legal consideration for the promise. A legal consideration is, of course, requisite (37 Cyc. 485; Twenty-third Street Church v. Cornell, 117 N. Y. 601 ; 23 N. E. Rep. 177); but at law its adequacy is not, as a rule, inquired into; and in this class of cases where public and charitable interests are involved, the courts lean towards sustaining such contracts, sometimes on consideration which, in a purely business contract, might be regarded as questionable. Such eases as Thompson v. Page, 1 Metc. 565 ; Ives v. Sterling, 6 Id. 310, and Watkins v. Eames, 9 Cush. 537 , are illustrative of Ibis tendency. We need not discuss in extemo• the elementary rale that a legal consideration may take the form of a benefit to the promisor or an inconvenience or loss to the promisee (Shadwell v. Shadwell, 6 Eng. Rul. Cas. 9, and notes; Holt v. United Security. &c., Co., 74 N. J. L. 795, 798); it is enough to say that the considerations mentioned above contain both forms, especially the compliance by agents of plaintiff with a particular stipulation of Mrs. Barr, represented by the defendant in this action, that a specific application of the money be secured and reserved for her. In this aspect the case resembles those decisions, holding that a promise to pay money in consideration of naming a child is enforceable. Dieffenderfer v. Scott, 5 Ind. App. 243 ; 32 N. E. Rep. 87; Eaton v. Libbey, 165 Mass. 218 ; 42 N. E. Rep. 1127; Gardner v. Denison, 217 Mass. 492 ; 105 N. E. Rep. 359.

On this phase of the case the trial judge erred; and as no question was raised of the fact of subscription, and there was enough in the evidence to .supply the other essentials of a legal contract unperformed, the case should have been submitted to the jury under proper instructions. The judgment will accordingly be reversed, to the end that a venire de novo be awarded. '

*465 For affirmance — The Chief Justioe, BejígeN, Kalisoh, IyATKENBACH, ÁCKERSON, JJ. 5. For reversal — The CHANCELLOR, Swayze, TeeNCHAed, PARKER, MlNTURN, BLACK, Wi-IITE, HEPPENHETMER, WILLIAMS, Tayloe, JJ. 10.