
    Barnes and others, trustees, against Perine.
    Where at the trial a party assumes and treats the questions made as questions of law to be decided by the court, and they are passed upon and ruled against him, ho cannot, on appeal, insist that the questions decided by the court involved a question of fact which should have been submitted to the jury. Per Allen, J.
    An objection, that the case made by the evidence varies from that stated in the complaint, cannot prevail on a review unless it was made at the trial.
    Where a defendant, being a member of a religious society which owned a lot with a church thereon, subscribed with others a writing by which he promised to pay $150 to the trustees of the society or a building committee, towards a fund of $5000, for the erection of a church on the site of the old one; and he afterwards took part in several meetings of the members of the society and the subscribers to the fund, at which a building committee was appointed and resolutions adopted requesting the trustees to dispose of the old church, and directing the building committee to erect a new one on its site for the use of the congregation with the consent and advice of the trustees, and directing the subscriptions to be delivered to the latter and paid to their treasurer as the amount should be required in making the new erection; and the trustees removed the old church, and, with the aid of the committee, erected a now one on the same site; Held, that the defendant was liable for the amount of his subscription; that the evidence proved that the society removed the old church and erected the new one at his request.
    Action in the supreme court by Barnes and others, as trustees of the First Presbyterian Church of Glens Falls, against Perine, to recover one hundred and fifty dollars, subscribed by him for the purpose of erecting a church.
    On the trial at the Warren county circuit, hold by Justice Paige, in May, 1850, the following facts appeared: A raligious society was incorporated in 1807, under the act of 1801, by the name of the “Union Church of Pearl Village,” Pearl Village being the name by which Glens Falls was formerly know. In 1848, this society was the owner of a lot of land, situate in Glens Falls, with a wooden church thereon which was occupied by the members, who were of the Presbyterian denomination ; and in that year an act was passed by the legislature (Laws of 1848, ch. 333), by which the corporate name of the society wTas changed to that of the “ First Presbyterian Church of Glens Falls,” and the trustees were authorized to sell the church then on the lot and appropriate the proceeds to the erection of another edifice thereon. On the 30th of March, 1848, the trustees appointed a committee of three to procure subscriptions to a fund to erect a new church edifice for the use of the society. The defendant was a member of the society, and attended worship in the church, and prior to the 18th of April he signed his name to a paper, of which the following is a copy, placing opposite to his name the sum of $150, viz: “We, the subscribers, agree to pay the sums set opposite our respective names, for the pui-pose of building a Presbyterian church at Glens Falls; said church to be built on the lot now occupied by the old Presbyterian church in said village. The amount to be subscribed, in cash, is to be $5000; the money to be paid to the trustees of said church, or to a building committee, to be appointed by the undersigned subscribers. The body of the church to be finished and furnished uniformly; the pews or slips are to be equally assessed, and rented annually, and said assessments and rents to be paid and applied by said trustees in payment for the stated preaching of the gospel in said church and congregation, and expenses of said church. Dated March 29,1848.” Other persons signed the subscription, to ah amount in all of over $5000. There was a meeting of the members of the society on the 18th of April, which was attended by the defendant, and at which resolutions were passed that a new church ought to be erected on the lot then occupied by the old one, and that the meeting l)e adjourned to the 22d of April, when, if requisite funds should be subscribed, a building committee be appointed to superintend the erection of a new church, pursuant to the terms of the subscription paper. On the 22d of April, the persons who had signed the subscription paper met, when a building committee was selected by them. The defendant was present at and took part in this meeting. It adjourned to meet again on the 24th of April. The meeting was held on the last named day, and the defendant attended and took part in its proceedings; at this meeting, resolutions were passed requesting the trustees to dispose of • the old church; directing the building committee to make contracts for the erection of a new church and purchase materials therefor; requesting such committee to procure a plan to be made of a new ctmrch, and submit it to the subscribers to the fund • authorizing and requiring this committee to build a house of worship for the use of the congregation, on the lot then occupied by the old church, of brick or stone, with the advice and counsel of the trustees of the society; and directing the subscription to be left in the hands of the trustees, to be collected and paid into the treasury from time to time, as required for the erection of the new church. The defendant was present and took part in this meeting of the 24th of April. The members of the society again met on the 30th day of May, the defendant being present. The building committee laid before the meeting plans for the erection of the new church, and the meeting passed a resolution approving of one of the plans and directing the building committee to erect a church in accordance therewith.
    On the 27th of April, the trustees of the society appointed a committee to dispose of the old church, and it was subsequently disposed of and removed from the lot. The trustees, on the 28th of April, directed the subscription paper to be recorded on its books, adopted and approved the resolutions passed by the meeting of subscribers on the 24th of April, and appointed the same individuals who had been appointed by the subscribers a building committee to erect the new ehúreh. The new church was erected on the site occupied by the old one, at an expense of over $5000, the trustees acting in concert with the building committee. The trustees collected the subscriptions, and provided and paid, through their treasurer, the bills for building the new church. The building committee made contracts for materials as early as May. After the church was completed it was occupied by the society as a place of worship, the defendant renting and occupying one of the pews. The plaintiffs were the trustees of the society at the time the suit was commenced, but they were not all the same persons who were trustees at the time the subscription was made.
    When the evidence was closed, the counsel for the defendant moved the court to nonsuit the plaintiffs on the following grounds : (1.) That the action should have been brought in the corporate name of the society, or in the names of the persons who were trustees at the date of the subscription, or in the names of the persons who composed the building committee; (2.) That the promise of the defendant contained in the subscription paper was void for want of a consideration ; (3.) That being void when it was made, it could not become a valid contract by means of the subsequent acts of the building committee in erecting the church or making contracts therefor. The justice denied the motion for a nonsuit and the counsel for the defendant excepted. The justice thereupon directed the jury to find a verdict for the plaintiffs for $162.50, being the amount of the subscription. To this direction the counsel for the defendant excepted, and the said justice reserved the case for further consideration on the questions of'law presented. The said justice subsequently ruled and decided: (1.) That the moneys subscribed were subscribed for the benefit of the religious corporation, and belonged to such corporation. The corporation being the real party in interest, the suit should' have been brought in its corporate name; but that a mistake in the name of the plaintiffs was not a ground of nonsuit. That it might be corrected by an amendment, under sec. 173 of the Code.
    (2.) That the defendant was liable to pay his subscription, on the ground that the agreement and evidence established a request, on his part, to the trustees of the corporation, or their agents, to erect the new church edifice, and to enter into the. necessary contracts for that purpose, in consideration of which, the defendant’s promise to pay $150 towards that object was made, and that the trustees having erected the edifice before a retraction, the defendant was liable; and he directed judgment to be entered upon the verdict. To each and every of these rulings and decisions the counsel for the defendant excepted. (For the reasons of the Justice who tried the cause, see 9 Barbour, 202.) Á bill of exceptions was made by the defendant. On appeal by him from the judgment, it was affirmed by the supreme court sitting in the 4th District. (See 15 Barb., 249.) The defendant appealed to this court.
    
      W. A. Beach, for the appellant.
    
      N. Hill, Jr., for the respondents.
   W. F. Allen, J.

Two questions were made by the defendant on the motion for nonsuit, and were renewed and discussed to the court at the close of the evidence as legal propositions, and no suggestion was made that there was any question of fact to be submitted to the jury. The defendant’s counsel assumed, and very properly, upon the case, as it appears by the bill of exceqdions, that the only questions were of law, and to be passed upon by the court and not by the jury. He urged such objections and assumed such positions as he purposed the interest of his client required and the state of the case warranted; and only so much of the evidence is spread out upon the record as was necessary to present the points made by him and which were ruled against him. The whole evidence would doubtless present a very different case. The direction to the jury, to render a verdict for the plaintiffs, was but one form of overruling the objections taken by the defendant to a recovery against him, and cannot be held as in effect a decision adverse to the defendant upon the point now sought to be made, that the case should have been submitted to the jury. If the defendant supposed that there was a disputed question of fact, material to the issue between the parties, he should have made a distinct request that it should be submitted to the jury. But having treated the questions as purely legal, and acquiesced in the disposal of them by the court as such, he cannot now be heard to object that facts were involved which should have been decided by the jury.

The obj ections urged by the defendant upon the trial were: 1. That the action should have been brought either in the corporate name of the society, or in the names of the persons who were trustees at the date of the subscription, or in the names of the building committee: and 2. That the undertaking of the defendant, as evidenced by the subscription, was void for want of a consideration; that being void when made, it could not become a valid contract by means of the subsequent acts of the building committee in erecting the church, or in making contracts for that purpose.

The last only of these propositions was argued upon this appeal, and is therefore the only one which will be considered.

An attempt to reconcile all the cases which have been adjudged, touching the validity of voluntary engagements to pay money for charitable, educational, religious or other public purposes, would be fruitless; for, while circumstantial differences in the cases will explain and satisfactorily account for some of the diversities in the decisions, it will be found that there is, to some extent, a want of harmony in tire principles and rules applied as tests of validity to that class of undertakings. The general principle is recognized in every case, that all simple contracts executory, whether in writing or verbal, must be founded upon a good consideration, and that the want of a legally adequate consideration, that is, a consideration recognized as suffieent in law, will vitiate every executory contract not under seal; still, the objection of a want of consideration for promises like the one before us has not always been regarded with favor; and judges, considering defences of that character as breaches of faith towards the public, and especially towards those engaged in the same enterprise, and an unwarrantable disappointment of the reasonable expectations of those interested, have been willing, nay apparently anxious, to discover a consideration, which would .uphold the undertaking as a valid contract; and it is not unlikely that' some of the cases, in which subscriptions have been enforced at law, have been border cases, distinguished by slight circumstances from agreements held void for a want.of consideration. I am of the opinion, however, that the liability of the. defendant can be maintained, and the judgment of the court below upheld, upon doctrines recognized as sound and well established, .and without conflicting with the principle of any decided case, and upon the ground upon which the decision was finally rested by the learned justice before whom the trial was had, to wit, that the agreement and evidence establish a request on the part of the defendant to the trustees of the corporation, or their agents, to erect the new church edifice and to enter into the necessary contracts for that purpose; in consideration of which the defendant’s promise to pay one hundred and fifty dollars was made.

The objection is now taken, and for the first time, so far as it appears, that the complaint is not framed to meet the case in this aspect; but the objection was not taken upon the trial or in the supreme court, and the evidence suppletory to the written promise was received, :and effect given to it below, without objection that it was not authorized by the complaint; and it is now tod late to start.an objection which might, if necessary, have been obviated at the trial by the exercise of the discretion vested in the judge, in regard to amendments of pleadings. If it were conceded therefore that the objection, if taken at the proper tune, would have been tenable, which is by no means certain, it must be held to have been waived by the omission to make it.

A consideration for an undertaking may consist in a benefit or advantage to the promisor, dr any obligation, harm, inconvenience or disadvantage incurred by the promise upon the faith of the promise; and, in the absence of fraud or other undue influence, the validity of the promise does not ordinarily depend upon the amount or value of the consideration as an equivalent for the thing promised. No pecuniary benefit resulted to the defendant from the building the new house of worship, and he was in no wise interested in the enterprise, except as the entire public were interested in a matter intimately affecting the highest interests of all, and there is therefore no consideration of benefit to the defendant which will uphold the promise. The evidence, however, discloses a good consideration, in the acts done and obligations incurred by the promise upon the strength of the promise of the' defendant and at Ms request. The promise was the corporate body, the First Presbyterian Church at Glens Falls, represented by the individual trustees in this action The real party in interest, both in the promise and in the action, is the corporation; and whatever was undertaken or done by the trustees, or by the building committee, was done and undertaken by the corporation. The acts of the agents were the acts of the corporation; and if any act was done or obligation incurred by either of their agents, as such, at the request of the defendant arid relying upon his promise, it will furnish a good consideration for his agreement to pay. The evidence is, that the defendant, with others, subscribed a paper by which he promised to pay a given amount towards the sum of five thousand dollars, to be expended in building a new Presbyterian church in the place of the old one to be removed; and that he afterwards attended and took part in several meetings of the society, as well as of the individual subscribers to the building fund, at which a building committee was appointed, and resolutions were adopted imposing certain duties and obligations upon the trustees and building committee, involving labor and expense and the necessity of incurring obligations in behalf of the corporation, in furtherance of the design of removing the old building and erecting the new, and distinctly requesting and directing the agents of the corporation to proceed and erect the new building after a proposed plan. There is no evidence that the defendant revoked his promise or did any act evincing his unwillingness to proceed with the undertaking, until long after, and until after contracts had been made, expenses incurred and labor performed in pursuance of the request and directions of the defendant and other subscribers to the fund. It is as if the defendant, either alone or with others, had come to the agents of the corporation and requested them to perform the acts mentioned, and delivered to them his written promise to pay a given amount as a compensation or to. enable 'them to do as requested. A compliance with the request by them, representing the corporation, would in that case very clearly constitute an ample consideration for the promise of the defendant. Parker, C. J., in Amherst Academy v. Cowles (6 Pick., 427), says; “It is quite sufficient to create a consideration that the other party, the payee, should have assumed an obligation, in consequence of using the note, which he was compellable either at law or in equity to perform;” and again, “ if, by means of his contribution or his solemn promise to pay, the body to whom he has pledged his word should encounter expense, become under legal obligations, or otherwise pursue the intent and purpose of the legislature in granting the charter, tins is a sufficient consideration to support the promise.” The evidence is, that, as early as May, contracts were made for brick for the new building, and other contracts for work andmaterials were made before the old building was torn down. McAuley v. Billinger (20 J. R., 89) was a subscription for the repairs of a church. The form of the promise is not given in the report of the case, but the court say; “ The consideration for his promise was the repairing the church. By signing the subscription, he sanctioned the acts of the meeting in resolving to make the repairs and in the appointment of the committee for that purpose, and he moreover recognized the authority of the committee, to receive the subscription money and to contract for the repairs.” Gardiner, J., in Hamilton College v. Stewart (1 Comst., 581), alluding to this case and approving the decision, says; “ According to the view of the court, it was, in effect, a written request to the committee to make repairs, in consideration of which .the defendant undertook to pay;” that is, the written promise, in connection with the acts of the defendant, was the same in legal effect as a written request, or a request contained in the promise. The law makes no distinction between a written or verbal request as tending to constitute a consideration for a parol agreement. There is nothing in the case of McAuley v. Billinger showing that the subscription paper was different in form from other papers of the same kind; and the court lays stress upon the acts of the defendant as evidencing a request from him to the building committee to go on with the repairs.

In the Trustees of Bridgewater Academy v. Gilbert (2 Pick., 579), the defendant had subscribed a certain sum for the rebuilding the academy, but had done no other act, and it was held that an action would not lie upon the agreement. Parker, C. J., says; “ The subscription paper will not sustain the action; and the defendant, after he had signed it, gave the plaintiffs no encouragement to proceed in the building. The beginning to provide materials, on the faith of the subscription paper above, was not sufficient to show that expenses were incurred at his implied request;” intimating very plainly that a request, on the part of the defendant to the plaintiff to make the expenditures, would have enured as a consideration to uphold the promise, and the judge distinguishes the case from the Farmington Academy v. Allen, and by distinguishing approves and affirms the decision in the latter case (14 Mass., 172), in which it was held that a partial payment of the subscription took it out of the rule, and was evidence of an implied request to the trustees to-expend money in building the academy. It was treated as an act by which the plaintiffs were induced to incur expense. Limerick Academy v. Davis (11 Mass., 113) was the same in circumstances as Bridgewater Academy v. Gilbert, and was decided in favor of the defendant for the same reason, to wit, the want of evidence of any act on the part of the defendant from which a request could be implied from him to the plaintiffs to incur expense or do any other act.

No principle can be extracted from the decision of Stewart v. Trustees of Hamilton College, in the court for the correction of errors, as reported (2 Den., 403), for the reason that the several members of that court, who assigned reasons for their judgment, did not agree - upon the principles upon which the case should be decided, although with a single exception they concurred in the result, and there is nothing in the decision of the case in this court (1 Comst., 581) which conflicts with the view I have taken of the defendant’s liability in this action. On the contrary, the reasoning of the judge by whom the opinion of the court was pronounced tends to support the result at which I have arrived in this case. In that case, the agreement of the defendant was not to be performed within one year, and therefore was required to be in writing, expressing the consideration (2 R. S., 135 § 2), and the whole inquiry therefore was whether a consideration for the agreement was expressed in the writing, or whether a consideration could be implied from its terms; and it was held, that no consideration appeared from the face of the paper, and therefore the plaintiffs were not entitled to recover: But that difficulty does not exist here; and if a good consideration for the promise can be proved, either in or out of the writing, it is sufficient. The difficulty in that case was, that there was no request by the subscribers that the plaintiffs should do anything, and no request could be implied from the agreement. Judge Gardiner says ; “ If with C. J. Nelson we find that the defendant agreed to pay $800, provided the plaintiff would procure subscriptions and should afterwards invest the money, &c., tiffs, according to the cases, would amount to a request to perform those services, and the defendant would be liable.” In the case at bar we have very distinct evidence of a request on the part of the defendant to the plaintiffs to perform the services which were performed, and which takes the case without the decision in the Hamilton College case. The request and promise would have been valid if both had been verbal, and the written promise may be sustained by evidence of a verbal request or by proof of any other consideration sufficient in law.

If the agreement was invalid, as it doubtless was up to the time the request was made, the defendant then, on the authority which he with others gave to the plaintiffs to circulate the paper for further subscriptions and to collect the amounts subscribed as should be necessary to prosecute the work, reaffirmed his former promise and gave it a sanction and vitality from that time. The promise was then made,, although the paper, which is now the evidence of it, had been before then prepared. The request and promise were, to every legal intent, simultaneous.

The judgment of the. court below must be affirmed with Costs.

Johnson, J.

The paper which the defendant "with others signed, and on which this action must be maintained, if it can be maintained at all, when its parts are arranged in their proper order, will read in this wise; “We the subscribers, in case $5000 payable in money be subscribed, agree to pay to the trustees of the church herein mentioned, or to a building committee to be appointed by the undersigned subscribers, the sums set opposite our respective names, for the purpose of building a Presbyterian Church at Glens Falls. Said church to be built on the lot now occupied by the old Presbyterian church , in said village. The body of the church to be finished and furnished uniformly; the pews or slips to be equitably assessed and rented annually, and said assessments and rents to be paid and applied by said trustees in payment for the stated preaching of the gospel in said church and congregation, and expenses of said church.” This paper was signed by the defendant and by others, the whole sum subscribed exceeding $5000.

The paper does not purport to contain any undertaking or promise, on the part of the church or the trustees, to do or to forbear to do anything which might serve to support the promise of the defendant, on the ground of mutuality; nor since the case of Hamilton College v. Stewart (1 Comst., 581), are we at liberty to consider whether the ground taken by the chancellor in the same case (in 2 Denio, 403), that the promise of one subscriber might serve as a consideration to sustain the promise of another, was good law; for the judgment, given by this court in that case, could not have been rendered without determining that ground to be unsatisfactory. That case, however, concedes, that if the agreement furnished evidence of a request to the plaintiffs by the defendant to do something detrimental to them or beneficial to him, and a promise to pay in consideration of its being done, the promise would be sustained by a sufficient consideration, in case the thing were afterwards done accordingly. The subscription paper shows that upon the lot, on which, by its terms, the new church was to be built, there stood an old church, belonging to the same congregation. By the law, applicable to this church society, that lot was in the power of the trustees. The old church could not be taken down, nor the new one erected upon the church lot, without their assent. The proposition to build the new church upon that lot necessarily involved a request to the promisees to take down or remove the old one, and to build or allow to be built the new one. It could be understood in no other sense. It would not have occurred to the Trustees, upon receiving that paper, to ask; Are we to understand that you ask us to take down the old church ? They would have seen that the writing imported such a request, and as plainly, in my judgment, as if the paper had contained the express words. There was, then, in this paper a request to the trustees to do, or permit to be done, something of detriment to. the trustees, and a promise, in case it should be done or permitted, to pay the sum mentioned. This is- clearly a promise which would become obligatory when the thing requested was done, and is not within the decision in Hamilton College v. Stewart. In that casé, all that the college was to do was to take the money and use it, while in this the trustees were to remove their old church and put up a new one upon their land, or to allow it to be done, which for this legal purpose amounts to the same thing. The judge at the trial was therefore right in refusing the motion for a nonsuit, so far as the second ground stated for the motion is concerned.

Upon the argument before us a question was raised, whether the manner in which the consideration of the contract was stated in the complaint was not fatally variant from that disclosed in proof. To this it is a sufficient answer to say, without considering whether any variance existed, that no such point appears to have'been made at the trial. The case of Field v. The Mayor, &c. of New-York (2 Seld., 179), was an equity cause in chancery, and the rule that the decree must be according to the allegation, as well as the proofs, was of course applied. It is not applicable to a case like this under the Code.

Upon the view which I have taken of the legal rights of the parties there was no question of fact for the jury, for the evidence shows, beyond all question, that the old church has been removed and a new one built, and whether the persons under whose actual direction the building took place were the trustees or the building committee is entirely immaterial.

The judgment should be affirmed.

All the judges who took part in the decision were in favor of affirmance. Gardiner, Ch. J., took no part.

Judgment affirmed.  