
    First Presbyterian Church of Albany, App’lt, v. Thomas C. Cooper et al., Adm’rs, etc., Resp’ts.
    
    
      (Court of Appeals,
    
    
      Filed March 5, 1889.)
    
    1. Contract—Subscription to church—When may be enforced.
    An action to enforce a gratuitous promise cannot be maintained, however worthy the object intended to be promoted. The promissor has the legal right to refuse to perform, which cannot be disputed, although his refusal may disappoint reasonable expectations, or may not be justified in the forum of conscience.
    2. Same—Recital of consideration not conclusive.
    By the terms of a certain subscription paper the subscribers promised and agreed to and with the trustees of a certain church, to pay to said trustees within a certain time the sums severally subscribed by them for the purpose of paying off “the mortgage debt of $45,000 on the church edifice,” upon the condition that the whole sum shall be subscribed or paid within one year, “ in consideration of one dollar, to each of us (subscribers) in hand paid, and the agreement of each other in this contract contained.” Held, that the recital of a consideration paid did not preclude the promissor from disputing the fact in a case like this, that the statement of a particular consideration which, on its face, is insufficient to support a promise, did not give it any validity, although the facts recited were true.
    3. Same—Mutual promise between subscribers does not enure to BENEFIT OF CHURCH.
    The mutual promise between the subscribers was not a consideration which would support the agreement of the subscribers because as to their promises, there is no privity of contract between the trustees and the promisors. Roberts v. Cobb, 103 N. Y., 600; 4 M. Y. State Rep., 290, and Barnes v. Perine, 12 N. Y., 18, distinguished.
    4 Same—Subscription may be rendered binding by a consideration ARISING SUBSEQUENT TO MAKING BETWEEN SUBSCRIBER AND CHURCH.
    A subscription invalid at the time for want of consideration, may be made valid and binding by a consideration arising subsequently between the subscribers and the church or corporation for whose benefit it is made.
    5. Same—Consideration—Efforts of trustees.
    Although ttiere is annexed to the subscription a condition that the subscribers are not to be bound unless a stated amount shall be raised, no request can be implied therefrom against the subscribers that the trustees shall perform the services and incur any expenses necessary to fill up the subscription.
    ®. Same—Liability of defendant—When action cannot be maintained.
    Accordingly, when the defendant’s testator subscribed $5,000 towards a fund ol $45,000, to be raised to pay a mortgage debt upon the plaintiff's lot and church edifice, and a condition was annexed that the subscribers were not to be bound unless the whole sum should be subscribed or paid in within one year, Held, that there was no valid consideration to uphold the subscription, and no action would lie upon it, even though the very amount had been subscribed or contributed. Following Trustees of Hamilton College v. Stewart, 1 N. Y., 581.
    Appeal from a judgment of the supreme court, general term, third department, reversing a judgment in favor of the plaintiff, entered upon the report of a referee.
    
      The facts are fully stated in the general term opinion, 10’ N. Y. State Rep., 142.
    
      Matthetv Hale, for appl’t; Walter E. Ward, for resp’ts.
    
      
       Affirming 10 N. Y. State Rep., 142.
    
   Andrews, J.

It is, we think, an insuperable objection to the maintenance of this action, that there was no valid consideration to uphold the subscription of the defendant’s intestate. It is, of course, unquestionable that no action can be maintained to enforce a gratuitous promise, however worthy the object intended to be promoted. The performance of such a promise rests wholly on the will of the person making it. He can refuse to perform, and his legal right to do so cannot be disputed, although his refusal may disappoint reasonable expectations, or may not be justified in the forum of conscience.

By the terms of the subscription paper, the subscribers promise and agree to and with the trustees of the First Presbyterian Church of Albany, to pay to said trustees within three years from its date, the sums severally subscribed by them, for the purpose of paying off ‘‘the mortgage debt of $45,000, on the church edifice,” upon the condition that the whole sum shall be subscribed or paid in within one year. It recites a consideration, viz.: “ In consideration of one dollar to each of us (subscribers), in hand paid, and the agreement of each other in this contract contained.” It was shown that the one dollar recited to .have been paid was not in fact paid, and the fact 'that the promise of each subscriber was made by reason of and in reliance upon similar promises by the others, constitutes no consideration as between the corporation for whose benefit the promise .was. made, and the promisors. The recital of a consideration paid,_ does hot preclude the promisor from disputing the fact in a case like this, nor does the statement of a particular consideration which on its face is insufficient to support-a promise, give it any validity, although the fact recited may be true. It has sometimes been supposed that when several persons promise to contribute to a common object, desired by all, the promise of each may be a good consideration for the promise of others, and this although the object in view is one in which the promisors have no pecuniary or legal interest, and the performance of the promise would' not, in a legal sense be beneficial to the promisors entering into the engagement. This seems to have been the view of the chancellor as expressed in the Hamilton College Case, when it was before the court of errors, 2 Den. 417, and dicta of the judges will be found to the same effect in other cases. Trustees, etc. v. Stetson, 5 Pick., 508; Watkins v. Eames, 9 Cush., 537. But the doctrine of the chancellor, as we understand, was repudiated, when the Hamilton College Case came before this court, 1 N. Y., 581, as háve been also the dicta in the Massachusetts Cases, by the court in that state, .in the recent case of Cottage Street Methodist Episcopal Church v. Kendall, 121 Mass., 528.

The doctrine seems .to us unsound in principle. It proceeds on the assumption that a stranger both to the consideration and the promise, and whose only relation to the transaction is that of donee of an executory gift, may sue to enforce the payment of the gratuity for the reason that there ha's been a breach of contract between the several promisors, and a failure to carry out as between themselves their mutual engagement. It is in no proper sense a case of mutual promises as between the plaintiff and defendant. If any action would lie at all, it would be one between the promisors for breach of contract.

In the disposition therefore of this case, we must reject the consideration recited in the subscription paper as ground for supporting the promise of the defendants’ intestate, the money consideration, because it had no basis in fact, and the mutual promise between the subscribers, because, as to their promises, there is no privity of contract between the plaintiff and the promisors. Some consideration must therefore be found other than that expressly stated in the subscription paper in order to sustain the action. It is urged that a consideration may be found in the efforts of the trustees of the plaintiff during the year, and the time and labor expended by them during that time, to secure subscriptions in order to fulfill the condition upon which the liability of the subscribers depended. There is no doubt that labor and services rendered by one party at the request of another would constitute a good consideration for a promise made by the latter to the former, based on the rendition of the service. But the plaintiff encounters the difficulty that there is no evidence, express or implied, on the face of the subscription paper, nor any evidence outside of it, that the corporation or its trustees did, or undertook to do anything upon the invitation or request of the subscribers. Nor is there any evidence that the trustees of the plaintiff, as representatives of the corporation, in fact did anything in their corporate capacity, or otherwise than as individuals interested in promoting the general object in view.

Leaving out of the subscription paper the affirmative statement of the consideration (which for reasons stated may be rejected), it stands as a naked promise of the subscribers to pay the several amounts subscribed by them for the purpose of paying the mortgage on the church property, upon a condition precedent limiting their liability. Neither the church nor the trustees promise to do anything, nor are they reqested to do anything, nor can such a request be implied.

It was held in The Hamilton College Case (1 N. Y., 581), that no such request could be implied from the terms of the-subscription in that case, in which the ground for such an implication was, to say the least, as strong as in this case. It may be assumed from the fact that the subscriptions, were to be paid to the trustees of the church for the purpose of paying the mortgage, that it was understood that the trustees were to make the payment out of the, moneys received. But the duty to make such payment in case they accepted the money, would arise out of their duty as trustees. This duty would arise upon the receipt of the money, although they had no antecedent knowledge of the subscription. They did- not assume even this obligation by the-terms of the subscription, and the fact that the trustees, applied money paid on subscriptions, upon the mortgage-debt, did not constitute a consideration for the promise of' the defendants’ intestate. We are unable to distinguish this case in principle from The Hamilton College Case (1 N. Y., 581).

There is nothing that can be urged to sustain this subscription that could not with equal force have been urged to sustain the subscription in that case. In both the promise was to the trustees of the respective corporations. In each case the defendant had paid part of his subscription and resisted the balance. In both, part of the subscription had been collected and applied by the trustees to the purpose specified. In The Hamilton College Case (which in that respect is unlike the present one), it appeared that the trustees had incurred expense in employing agents to procure subscriptions to make up the required amount, and it was shown, also, that professors had been employed upon the strength of the fund subscribed. The Hamilton College Case is a controlling authority in this case. It has not been, overruled, and has been frequently cited with approval in the courts of this and other states.

The cases of Barnes v. Perine (12 N. Y., 18), and Roberts v. Cobb (103 N. Y., 600; 4 N. Y. State Rep., 290), are not in. conflict with the decision in The Hamilton College Case.

There is, we suppose, no doubt that a subscription invalid at the time for want of consideration may be made valid and binding by a consideration arising subsequently between the subscribers and the church or corporation for whose benefit it is made.

Both of the cases cited, as we understand them, were-supported on this principle. There was, as was held by the court in each of these cases, a subsequent request by the subscriber to the promisee to go on and render services or • incur liabilities on the faith of the subscription, which request was complied with and services were rendered or liabilities incurred pursuant thereto. Ifc was as if the request was made at the very time of the subscription, followed by performance of the request by the promisor.

Judge Allen in his opinion in Barnes v. Perine, said, “ The request and promise were to every legal effect simultaneous,” and he expressly disclaims any intention to interfere with the decision in The Hamilton College Case.

In the present case it was shown that individual trustees were active in procuring subscriptions. But, as has been said, they acted as individuals and not in their official capacity. They were deeply interested, as was Mr. Crook, in the success of the effort to pay the debt on the church, .and they acted in unison. But what the trustees did was not prompted by any request ffiom Mr. Crook. They were .all co-laborers in promoting a common object. We can but regret that the intention of the intestate in respect to a matter in which he was deeply interested, and whose interest was manifested up to the very time of his death, is to be thwarted by the conclusion we have reached. But we think there is no alternative, and that the judgment must be affirmed.

All concur.  