
    David Ives & others vs. George W. Sterling.
    S. subscribed a paper, with others, promising to pay $ 100 for erecting and endowing <tc academy, “ each subscriber to be interested therein in proportion to the amount by him subscribed,” and engaging to pay the same to such person or persons as might be appointed, by a majority in interest, to receive it, and agreeing that when such majority should deem it proper, they might call a meeting of the subscribers, who might choose officers and committees, give them instructions, and pass votes concerning the building, location and endowment of the academy: S. afterwards joined others, who had subscribed the paper, in a petition to the legislature, stating that sufficient funds had been raised for building and endowing an academy, and praying to be incorporated as an academy 5 which petition was granted, and an act of incorporation passed: There were then no other funds besides the sums thus subscribed: Afterwards, and after the subscription was filled, a meeting of the subscribers was called, and was twice adjourned : At the first meeting, A., B. and C. were chosen a building committee, and were instructed to u submit their views and doings in relation to procuring the most eligible location” for the building, and the terms on which a site could be ob tained: At the first adjourned meeting, said committee were authorized forthwith to make such contracts as might be necessary for procuring materials for the erection of a building, and a site for the same was agreed upon, and A., B. and C. were appointed and authorized to collect of the several subscribers the sums subscribed by them; At the second adjourned meeting, an unsuccessful attempt was made to change the site before agreed upon: Said committee proceeded to make a contract for building, purchased the site agreed upon, and took a conveyance thereof3 and the building was erected: S. attended all said meetings, and voted as one of the associate subscribers : At the first adjourned meeting, S. declared, in presence of said committee, that “ if the location agreed on should be persisted in,” he would not pay his subscription 3 and afterwards, and after said committee had purchased said site, and made the contract aforesaid, S. gave them written notice, that u if the course which had been commenced should be pursued,” he should not feel bound nor disposed to pay his subscription. Held, that S. was legally bound to pay the sum subscribed by him, and that A., B. and C. might maintain an action against him to recover the same.
    It is no defence to an action brought to recover money subscribed for the building and endowment of an academy, that the committee, appointed by the subscribers to purchase land for the site thereof, have taken a deed which does not convey a fee, or which is on a condition that is burdensome to the grantees.
    Assumpsit to recover $100 of the defendant on his subscription of the following instrument: “ Whereas it is proposed lo erect a suitable building for an academy, in the village of Great Barrington, and, if sufficient means can be obtained, to endow the same with a library and scientific apparatus; and whereas it is proposed to procure the requisite funds by subscription, each subscriber being interested therein in proportion to the amount by him subscribed in shares of ten dollars each : Now, know all men by these presents, that for the object of building said academy, we do hereby subscribe for the number of shares set to our respectivev names, and hereby promise that we will pay for the same, at the rate of ten dollars for each share by us subscribed, to such person or persons as may be appointed to receive the same by a majority of the interests in the whole amount of stock hereto subscribed; and whenever a majority of the interests in the whole amount of stock hereunto subscribed shall deem it proper, they may call a meeting of the subscribing stockholders, by publishing a notice in the Berkshire Courier, designating the time and place for holding said meeting; and said subscribing stockholders may proceed to choose such officers and committees, (by the major votes of the stockholders present, the number of votes to be determined by the number of shares each voter holds or represents,) give such instructions and di rections to said officers or committees, pass such votes, and do such acts respecting the building, location and endowment of said academy, or do any other act in the premises, that may be thought necessary and proper. Dated at Great Barrington this 22d day of January eighteen hundred and forty one.
    George W. Sterling, 10 shares, $100.”
    The trial was had in the court of common pleas, before Warren, J , who made the following report thereof: It was admitted by the defendant, that he signed the instrument above set forth, at the time it bears date. The plaintiffs then introduced evidence tending to show, that after the subscription was filled, a meeting of the subscribers was called in the manner provided in the subscription paper; that said meeting was held on the 5th of March 1841; that an adjourned meeting was held on the 12th of March, and another adjourned meeting on the 15th of March; that at each of these meetings a majoritv of the subscribers, in number and interest, was present, and that the defendant was present at each of them: That at the first meeting, a question arose as to the location of the building proposed to be erected; that some of the subscribers were in favor of a location south, and others of a location north, of a certain designated point; that the meeting declared in favor of the latter, the defendant voting with the majority; that the plaintiffs were then chosen a building committee, with instructions to submit to the stockholders, at an adjourned meeting, two or more plans for said building, with “ their views and doings in relation to procuring the most eligible location north of the point aforesaid, together with the terms upon which lots can be obtained, and estimates for said academy generally: ” That at the adjournment of said meeting, the plaintiffs, as such committee, submitted several plans for the proposed academy, and it was voted, without opposition, that “ the building committee be authorized forthwith to make such contracts as may be necessary for the purpose of procuring materials for the erection of the academy; ” that a motion was then made, that the committee “ locate the academy on land offered by Messrs. Hopkins & Rosseter ; ” that upon this proposition, there was a diversity of opinion, but the motion was carried, and, by a vote of the meeting, the plaintiffs were then appointed and authorized to collect from the several subscribers the amount of their subscriptions, at such times as they might be required for the purpose of defraying the necessary cost of building materials, paying for land, &c.: That at the opening of the second adjourned meeting, held on the 15th of March, a motion was made to dissolve the meeting, which was opposed by the defendant, and was not carried; that the vote, passed at the last meeting, authorizing the committee to collect the subscriptions, and .proceed with the erection of the building, was reconsidered; that a motion was then made to adopt the same vote, with a proviso restricting the expenditures of the committee to the sum of $2500, and that this motion was carried unanimously.
    The plaintiffs also introduced testimony tending to prove that in the month of March 1841, they made a verbal contracl with an individual for the erection oí the academy; that this contract was reduced to writing on the 24th of May following; that, in pursuance of such contract, that individual commenced making doors, &c. for the building, in March 1841; that on the 5th of June 1841, the plaintiffs purchased of Charles W. Hopkins and Samuel Rosseter the lot of land which is referred to in one of the votes above mentioned, and took deeds thereof, as hereinafter mentioned; that the cellar for said building was begun about the 19th of June, and that the building was erected on the lot aforesaid, and completed about the 1st of December 1841.
    The deeds above mentioned conveyed the land, therein described, to the plaintiffs, “ to have and to hold to them in their said capacity of building committee, their successors and assigns, to their use and behoof forever.” There was also this clause in the deeds: “ The conditions connected with and inseparable from this grant are, that said grantees, their successors and assigns, shall build and forever keep in repair a fence, not less than six feet in height, oil the southerly and westerly sides of the land above described, and shall erect an academy thereon,” &c.
    It was admitted that, on the 17th of February 1841, the defendant, with others, signed a petition to the legislature, praying for an act of incorporation as the “ Great Barrington Academy; ” and that, upon this petition, the St. of 1841, c. 68, was passed, and the corporation thereby established was organized in October 1841. In said petition, the petitioners represented that they were about to establish an academy in Great Barring-ton, “ sufficient funds therefor having been already raised.”
    It was also admitted that when said petition was signed, no funds had been raised for the establishment of an academy, excepting those provided for by the subscription paper aforesaid.
    The plaintiffs offered evidence tending to show a demand upon the defendant before the commencement of the action.
    The defendant offered evidence tending to show that, at the second meeting of the subscribers, on the 12th of March, he declared, in presence of the plaintiffs, that if the location on the Hopkins & Rosseter lot was persisted in, he would not pay the amount of his subscription, unless compelled t,o do so.
    
      Ii was admitted that, on the 24th of June 1841, the plaintiffs received a communication from the defendant and others, in which they expressed their dissatisfaction with the proceedings of the associates in the selection of a site for the academy, complained of the terms of the deeds conveying the land to the plaintiffs, and gave notice that if the course which had been commenced should be pursued, they should “not feel either bound or disposed to pay the subscriptions” which they had made.
    The defendant contended, upon this evidence, that the promise declared on was void for want of consideration, and that if any action could be maintained, it must be in favor of all the subscribers; but the court ruled otherwise, and instructed the jury that if all the foregoing facts were proved to their satisfaction, they should return a verdict for the plaintiffs, which they did accordingly. To this instruction the defendant alleged exceptions.
    
      Bishop & Sumner, for the defendant.
    The facts reported will not support the action. Limerick Academy v. Davis, 11 Mass. 113. Boutell v. Cowdin, 9 Mass. 254. Farmington Academy v. Allen, 14 Mass. 172. Bridgewater Academy v. Gilbert, 2 Pick. 579. Foxcroft Academy v. Favor, 4 Greenl. 382. The question, whether the defendant had so ratified his original subscription, as to make himself legally liable to pay the amount subscribed, should have been left to the jury. So of the question, whether the plaintiffs had incurred expense on the faith of the defendant’s subscription.
    The conduct of the subscribers exonerated the defendant from all liability, if he originally incurred any. Where the promisor can show that the promisees have not performed the engagement on their part, he may defend on the ground of failure of consideration. Per Parker, C. J. 6 Pick. 433. The plaintiffs have taken a deed which conveys only a life estate in the land, and that estate is encumbered with a condition that the grantees shall maintain a fence. See Story on Agency, § 171. Sickels v. Pattison, 14 Wend. 257.
    
      Byington, for the plaintiffs,
    cited Amherst Academy v. Cowls, 
      6 Pick. 427 ; Bryant v. Goodnow, 5 Pick. 228; George v. Harris, 4 N. Hamp. 533; Thompson v. Page, 1 Met. 565; 21 Amer. Jurist, 282.
    The defendant cannot withhold his subscription without being guilty of a fraud on the legislature; he having represented to that body that sufficient funds had been raised for establishing an academy.
   Dewey, J.

It may be found somewhat difficult to reconcile all the views which have been taken, in the various cases that have arisen upon the validity of promises, where the ground of defence has been that they were gratuitous and without consideration. The decisions, in some of the earlier cases, were strongly against the validity of such promises, while they constituted mere promises of future contribution, and nothing had been done, by way of expenditure, upon the faith of them. The case of Limerick Academy v. Davis, 11 Mass. 113, often cited upon this point, and a leading case, arose upon a naked promise of contribution to an academy proposed to be established. It contained no provision for the payment of money to any individual named in the subscription paper, or to be selected by the subscribers at a meeting to be held by them for that purpose. In an action brought upon this subscription by the academy, when subsequently such an academy was incorporated, it was held that the plaintiffs could not recover, inasmuch as there were no legal parties to the contract, and no valuable consideration for the promise. The case of Farmington Academy v. Allen, 14 Mass. 172, while it affirmed the doctrine of the former case, held the defendant liable, upon the ground of acts of ratification by him, and the expenditure of money by the plaintiffs in furtherance of the object of the subscription. The case of Boutell v. Cowdin, 9 Mass. 254, was a decision against the validity of a voluntary subscription, as a contract capable of being enforced in a court of law. This case, however, has been the subject of subsequent commentaries by the court, and perhaps may be considered somewhat explained, and the principles tnerein stated to be somewhat modified. Amherst Academy v Cowls, 6 Pick. 434. The case of Bridgewater Academy v. Gil bert, 2 Pick. 579, is undoubtedly a very strong case, indicating the extent to which this principle of holding voluntary subscriptions invalid in law has been carried. Here was a subsisting corporate body, capable of acting as a party, and therefore obviating what has frequently been an insuperable objection in other cases, viz. the want of parties. The subscription was in aid of rebuilding an edifice that had been destroyed by fire, and was to be paid in lumber. The plaintiffs had contracted for materials for the rebuilding, before the defendant gave notice of his intention not to pay his subscription because the trustees of the academy were about to erect their building on a different site, and more remote from the dwelling-house of the defendant. The decision was against the recovery of the subscription. The grounds of this decision are briefly assigned, and seem to be, that a promise of that character was not in itself binding, and that the defendant had not, as in the case of Farmington Academy v. Allen, ratified it, or permitted expenditures to be made upon the credit of it. How far the fact of change of location of the edifice would have warranted the refusal to pay, is not particularly stated in the opinion; although, as it seems to me, it might have been a material circumstance in the case. To some extent, the objections, formerly taken and sustained, to the enforcing of payment of a voluntary subscription or promise in aid of a charity, have been held less available in the later cases. Thus in the case of the Trustees in Hanson v. Stetson, 5 Pick. 506, a voluntary contribution to a ministerial fund, in the form of a promissory note given to a competent payee, was held valid and binding. The court say, “ it is a sufficient consideration that others were led to subscribe, by the very subscription of the defendant.” Importance is also attached to the fact, that in consequence of these subscriptions thus made, the great purpose in view, the settlement of a minister, had been effected. In the case of Amherst Academy v Cowls, 6 Pick. 427, upon a full argument, and after a review of the previous cases, an action was sustained upon a promissory note given in aid of a charitable fund for education.

In looking at the facts stated in the case before us, it will be seen that the articles of agreement, signed by the defendant and his associates, extend beyond a mere promise to pay a certain sum of money towards the expenses of erecting a building for an academy, and leaving the object to be effected by a corporation yet to be created. Had such been the state of the case, the position taken by the defendant, that this contract could not be enforced, might have been insuperable. But we find, in the articles of association, provision made as to the persons who are to be the payees; and the several subscribers stipulate to make payment, for the number of shares subscribed by each, to such persons as should be appointed to receive the same, by a majority of the shareholders. We find further, that the articles of association contemplate action and control by the subscribers, in all matters arising upon the questions of location, and erection of the building, and also a direct pecuniary interest; it being provided that “ each subscriber shall be interested therein, in proportion to the amount by him subscribed, in shares of ten dollars each.” These features of the case have an important bearing upon the question of the validity of the contract, and the right to enforce it in a court of law. We find also that the defendant, to some extent, ratified and confirmed his original act of subscription as a shareholder. He attended at three different meetings of the holders of shares in the association, and, under the rights acquired as a subscriber to the shares, acted and voted as a member of the association. At the first meeting, he voted with the majority upon the preliminary question, fixing certain limits within which the location was to be made. The plaintiffs were chosen a building committee, at the same meeting, and were directed to report, at an adjourned meeting, plans for said building; and pursuant to this vote, they performed said service. At the subsequent meeting, the defendant, although dissatisfied with the vote locating the academy building on the land of Messrs. Hopkins and Rosseter, and although he declared that if this location was persisted in, he would not pay his subscription, did not declare any intention to withdraw himself from the association, but on the contrary, continued to act as one of the members, attended the third meeting of the associated subscribers, and exercised the right of membership. If the notice given by the defendant at the second meeting might have been deemed a revocation of his subscription, had he then withdrawn from all further participation in the objects of it, yet he seems virtually to have waived or abandoned the renunciation thus made, by continuing to meet with the associates, and acting as one connected with them, at their third meeting.

The plaintiffs were duly appointed and authorized to collect from the several subscribers the amount of their subscriptions. In the mean time, an act of incorporation for an academy had been obtained, on the petition of the defendant and others, but no organization had taken place. The plaintiffs, in this state of things, proceeded to contract for land, and took measures to procure the erection of a suitable building for the academy, and subsequently a notice in writing was given to the plaintiffs that the defendant did not consider himself bound, and was not disposed, to pay his subscription, if the location selected was to be adhered to.

It seems to us that all these facts, taken together, present a case avoiding the objection of want of parties or want of legal consideration for the promise of the defendant. The case of Thompson v. Page, 1 Met. 565, strongly sustains this view of the question which arises upon the case before us. The facts are so far similar as to render it somewhat analogous on both these points. That was a subscription, by an association of individuals, to aid in the erection of a meeting-house ; the payment of the sums subscribed was to be made to a treasurer to be selected by a majority of the associates, at a meeting to be held for that purpose, and the subscribers were to be interested in the stock, as in the present case: And it was held, in an action, brought by a person thus chosen treasurer, to enforce the payment of a subscription, that it was rightfully brought in the name of such person, and that there was a sufficient consideration for the promise, to render it valid and binding in law. George v. Harris, 4 N. Hamp. 533, is also a strong case favorable to the sustaining of the present action.

These principles and decisions seem fully to sustain the present action; and we think we are only applying what has latterly been considered the rule of law in analogous cases, in adopting, as the result of our consideration of the questions he:e raised, the conclusion that the promise was valid in law, and that the objections taken to it cannot prevail.

This view of the case disposes of the principal question, and the only one of any difficulty. The objections further suggested, as arising from the proceedings of the committee in relation to the nature of the title acquired to the land purchased by them, can constitute no defence to the action, or exonerate the de fendant from his liability to pay his subscription.

Exceptions overruled.  