Somers v. Miner , 9 Conn. 466 ( 1833 )

Daggett, Ch. J.

The questions in this case relate to the sufficiency of the declaration, and the correctness of the charge to the jury.

1. Is the declaration sufficient? The only objection to it, is, that there is not a sufficient consideration shewn for the promise alleged. The declaration sets forth, among other things, that the defendant, with many other persons, being members of the Presbyterian or first ecclesiastical society of Woodbury, associated together to raise a fund for the support of the gospel ministry, by subscription. The defendant subscribed 500 dollars, in the year 1816; and has ever since, until the 1st day of January 1329, paid the interest thereof, it being one of the terms of the subscription, that the interest only should he paid, so long as the principal was secure. This interest was to he exclusively devoted to the support of the Presbyterian ministry, for the purpose of perpetuating the blessings of the gospel to the defendant and the other members of the society.

If this be not a sufficient consideration for a contract, it is difficult to imagine one. He was to be relieved from taxation — from his proportion of the burdens of the society — to the extent of the income of the fund raised. There was, then, a direct pecuniary benefit, as the case might be ; for it is to be noticed, that it appears on this declaration, that two other members of the society became subscribers to the amount of 1000 dollars, each ; several others to the amount of 500 dob lars, each : and many, in less sums : so that the whole sum subscribed, was 5270 dollars. Now, is it to be endured, that this defendant should be permitted to defeat this laudable object, by withdrawing his subscription, when, by that subscription, lie has induced many others to associate with him ? I think, that in this view of the case, this objection cannot prevail.

But again; there are not wanting approved authorities directly in point. “ It is a sufficient consideration,” says Marshall, Ch. J. in Violett v. Patton, 5 Crunch 142. 150. “ that something valuable flows from the person to whom the promise is made, and that the promise is the inducement to the transaction.” In The First Religious Society of Whitestown v. Stone, 7 Johns. Rep. 112. it was holden, by the supreme court of New-York,that the preaching of the gospel was a sufficient consideration for a promise; and in Dieffendorf v. The Reformed Caluinistic Church of Canajoharie, 20 Johns. Rep. 12. the same doctrine necessarily resulted from the decision. The same general doctrine is fully recognized in relation to subscriptions for building turnpike roads, in The Worcester Turnpike Corporation v. Willard, 5 Mass. Rep. 80. in Gilmore v. Pope, 5 Mass. Rep. 491., and in The Trustees of Farmington Academy v. Allen, 14 Mass. Rep. 172. In short, a more unfounded, objection cannot be urged.

2. The other objections arise upon the motion.

First, the subscription was not to be binding, unless 5000 dollars Should be subscribed and well secured, by a specified time. It is a part of the case, that upwards of 5000 dollars was subscribed, and was secured only by the signatures of the subscribers, who Were and are responsible men. The case also finds, that the defendant has paid the interest, according to the terms of the agreement, from the time of entering into it until the 1st of January, 1829.

It was objected, by the defendant, that this is a condition precedent, and not being performed, he Was never liable. It was answered, first, that lie, by his payment of interest annually, for twelve years, had waived the non-performance of the condition ; and secondly, that the condition had been Substantially complied with, or, in other words, the sums subscribed were well secured. The judge expressed to the jury his opinion, adopting the first position, that the condition had not been fulfilled, but had been waived by the defendant, under and by virtue of the circumstances. Without enquiring here into the doctrine of waiver, I am well satisfied, and such I understand to be now the unanimous opinion of the court, that the condition annexed to this agreement, has been complied With.

Here an enquiry arises, what is the meaning of the expression well secured ? These are the terms employed. There is-, certainly, nothing necessarily implying collateral security. If the parties had so intended, there were apt expressions in common use, for the purpose. If a mortgage or other pledge ; if a surety Or sureties had been contemplated; provision would have been made to that effect. Well secured is satisfied; by the signature of one responsible man. The number will not vary the kind of security ; and if one is fully responsible, and the motion admits that all the subscribers were so, then the sums are well secured, unless- it be true, that nothing is well secured, which will admit of greater security. No one will assert, that a mortgage was required. Were sureties required ? There can be uo good reason for this ; and there is one stipulation in the agreement, which seems strongly opposed to this idea, viz. the provision that the money need not ' paid during the lives of the subscribers, if the sums were safe, Whoever became surety, would be so for life ; certainly an embarassing provision.

There is only one adjudged case, within my knowledge. bearing directly on this point. In Phelps v. Yeomans, 2 Day, 227. a question arose, whether the bond of the plaintiff alone was sufficient, under the statute then in force, ^(a) which required, that when the plaintiff took out an attachment, In. should give “sufficient security to prosecute his action to cf-feet,” &c. On a plea in abatement to that process, for a noncompliance with the provision of the statute above referred to, it was holden, by the lower courts, and confirmed in this, that the plaintiff’s own bond was, in that case, sufficient sa urity.

Secondly, it is insisted, that there is another condition an nexed to this agreement, which has not been complied with. The money raised by the income of this fund, has not bi r appropriated for the support of a minister approved by the association of ministers of that district. The facts admitted are — that in 1817, the Rev. Mr. Andrew was ordained, by the ministers of the association to which that church belonged, and has ever since been received and recognized by that body. The objection comes rather late; but I will exurnine it.

The stipulation in the agreement, is, that the principal sum is to be and remain a perpetual fund, and the interest thereon tobe appropriated,exclusively, to the support of a Presbyterian minister, to be approved by the association of ministers within whose limits the defendant then lived. It is alleged, and not denied, that the interest has been appropriated, exclusively, to the support of the Rev. Mr. Andrew. The qtiestion, then, is, was he approved, by the association of ministers within the limits mentioned ?

The testimony adduced by the plaintiffs, as to this point, was, that all the ministers of the association were members of the consociation also, — a distinct body, consisting of the aforesaid ministers and a lay delegate from each church; that according to the usages of the Presbyterian churches in Connect-the consociation decided on the expediency of settling a ‘clergyman, and then the association proceeded to ordain him : that the consociation met for the purpose of deciding the question of expediency ; determined in favour of it; and then the association, consisting of a majority of the ministers within the limits, proceeded to, and did, in fact, decide, that he should be ordained, and the association accordingly ordained him 'over the church and society ; and have ever since recognized him as a member of their body. It also appears, that the members of this consociation were all notified to attend ; and that their limits were co-extensive with the limits of the association, and included none others ; and that a majority did attend.

Now, it is insisted, that Mr. And few has not been approved, by this association. It is said, that no vote of this body is shewn directly approving him. Nor is such a vote, in my judgment, at all necessary. The defendant and the other súb-seribers to this fund knew, that an association was not an incorporated body ; that no legal proceedings could be required : that no officer, either moderator or president, or secretary, or clerk could be recognized as such ; but still, thátthésé bodies had meetings ; and that they, to a certain extent, were known among the other informal, and by law acknowledged bodies of men, as having a superintending care of our chureh-es. The usages of these associations of the ministers of the churches, are to be respected in matters within their jurisdiction ; but they are not legal meetings ; and their proceedings may be shewn, by such evidence as, from the nature ofi the case, can be obtained. At any rate, these associations are referred to, in this agreement; and their approval only is required. How that approbation shall be evidenced, is not provided ; nor, in my judgment, is it of any importance, provided the fact be shewn.

The two great facts, that he was ordained a minister over this church and society, by a majority of the ministers of that association, in the year 1817, and that ever since, he has been j i. .ognized as a member of that association, ride over all other I considerations, and render unnecessary any other or further ! proof, that he was, and constantly has been, approved, by the I association referred to in the agreement.

The motion in arrest, therefore, cannot prevail; and a new , e « be refused.

The other Judges were of the same opinion.

Motion in arrest overruled ; and New trial not to be granted.

(a) See Stat, 24. ed. 1796-