Norton v. Janvier , 5 Del. 346 ( 1851 )

By the Court.

BooiH, Chief Justice.

The action was brought before a magistrate by George Janvier, treasurer of the village Presbyterian Church of Newark, against William A. Norton, on a subscription of $50, made towards payment of the debt of that church, on condition that a sufficient sum to liquidate the debt should be raised.

Bayard, for plaintiff. Rodney, for defendant.

The first objection taken by the defendant is, that as the church is incorporated, the suit should ha/Ve been brought in the name of the corporation, and not by its treasurer. The engagement which the defendant made to pay the money to the treasurer of the church, authorizes a suit to be brought in his name, though otherwise the suit must be in the name of the corporation. The capacity of Mr. Janvier as treasurer, may be proved by paroi. The fact that a person acts as a corporate officer is sufficient evidence that he bears that character, at least in reference to the contracts of third persons with him in that character.

2. The right of action must have been complete before the suit was brought below, to enable the party to recover on the appeal. The case though de nova in this court as to the pleadings and mode of proceeding, is the same case that was commenced below; and unless the plaintiff had then the right of action, he cannot perfect that right by subsequent facts.

3. The law will not enforce a mere gratuitous or voluntary promise made without consideration. But the question is, what is a merely gratuitous promise. If a subscription be made to a common object, on condition that such object is accomplished, or sufficient money be raised to effect that object, and that condition is performed, the obligation to pay would be perfect and may be enforced by a suit at law. Verdict for defendant.