Young Men's Christian Ass'n v. Estill , 140 Ga. 291 ( 1913 )

Evans, P. J.

(After stating the foregoing facts.)

1. A promise to donate money to a charitable corporation in furtherance of the design of its creation stands upon a different footing from a subscription to shares in a commercial corporation, in their relation to that clause of the statute of frauds which requires contracts for the sale of goods, wares, and merchandise to the' amount of -fifty dollars or more to be in writing. In Hightower v. Ansley, 126 Ga. 8 (54 S. E. 939, 7 Ann. Cas. 927), it was held that a contract for the sale of shares of stock in an incorporated company, of the value of fifty dollars or more, fell within this clause of the statute. Should this holding be applied to á subscription for shares, treating the corporation as selling shares to the subscriber, there would be no analogy to a promise to donate money to a charitable institution. A promise to buy shares in a commercial corporation is quite dissimilar from a promise to donate money to an eleemosynary institution. A promise of the latter kind does not fall within this clause of the statute.

2. The promise alleged was one to give $500 to the charitable corporation upon the beginning of the contemplated work of constructing a building in furtherance of the general corporate design. This contingency could occur within a year; and the rule is settled in this State that where the time when a contract is to be performed depends-on some contingency, it is within the statute of frauds requiring contracts not to be performed within a year to be in writing, if the contingency can not happen within a year. • But if it may happen within a year, it is not within the statute. Burney v. Ball, 24 Ga. 505.

3. The Young Men’s Christian Association is a charitable corporation, and its directors determined to erect in the city of Savannah a large building for the advancement of the cause represented by it, which was entirely charitable and benevolent. Several persons subscribed in writing, promising to give named sums of money for the accomplishment of the enterprise. When Mr. Estill was solicited for a subscription, he promised to give $500 for the work as soon as the work of constructing the building began. The local newspaper owned and published by a company of which he was the chief, if not the only, stockholder, and managed by him, published a list of the subscribers, which included his name among the rest as subscribing the amount which he had orally promised to give. The building was completed at great expense, in reliance upon the subscriptions and promises of Mr. Estill and others. Work began upon the building more than six months before the death of Mr. Estill, and has been fully completed. Mr.. Estill never withdrew or repudiated his promise to pay the amount he promised to donate. His executors deny the binding force of his promise to donate $500 to the enterprise. The contention is that a promise to donate a named sum to a charitable purpose is purely gratuitous and unenforceable, for want of a consideration. If Mr. Estill had signed a subscription contract with others to erect this building, the mutual promises of the subscribers would have furnislied a good consideration. Our code declares that “in mutual subscriptions for a common object, the promise of the others is a good consideration for the promise of each.” Civil Code, § 4246. This section has been held applicable to subscriptions to build churches, and to locate assembly grounds of a religious denomination at a particular point. Wilson v. First Prsbyterian Church, 56 Ga. 554; Owenby v. Georgia Baptist Assembly, 137 Ga. 698 (74 S. E. 56, 27 Ann. Cas. (1913B), 238). The petition alleges that other subscriptions were made by other persons before and after Mr. Estill’s promise to give $500, and that all of them, including Mr. Estill’s verbal promise, were mutual subscriptions for the common object. Notwithstanding this allegation, we do not think the case in hand comes within the code section quoted. That section has application to mutual subscriptions, which means written promises mutually entered into by the subscribers. The statute is not sufficiently broad to include oral promises, and can not be extended so as to cover the promise in the case at bar.

A promise to donate money to a charitable purpose is gratuitous and unenforceable unless some consideration therefor exists. Such a promise amounts to nothing more than a voluntary offer which may be withdrawn before being acted on. But if, on the faith of the promise, the promisee before withdrawal of the promise expends money and incurs enforceable liabilities in' furtherance of the enterprise the promisor intended to promote, the consideration is supplied and the promise is rendered valid and binding. Owenby v. Georgia Baptist Assembly, supra; School District of Kansas City v. Sheidley, 138 Mo. 672 (40 S. W. 656, 37 L. R. A. 406, 60 Am. St. R. 576); McCabe v. O’Connor, 69 Ia. 134 (28 N. W. 573); Amherst Academy v. Cowls, 6 Pick. (Mass.) 427 (17 Am. D. 387); Richelieu Hotel Company v. International Military Encampment Company, 140 Ill. 248 (29 N. E. 1044, 33 Am. St. R. 234); 1 Page on Contracts, § 298; 1 Elliott on Contracts, § 228. In 1 Parsons on Contracts (8th ed. *453) it is said: “On the important question, how far voluntary subscriptions for charitable purposes, as for alms, education, religion, or other public uses, are binding, the law has in this country passed through some fluctuation, and can not now be regarded as on all points settled. Where advances have been made, or expenses or liabilities incurred by others in consequence of such subscriptions, before any notice of withdrawal, "this should, on general principles, be deemed sufficient to make them' obligatory, provided the advances were authorized by a fair and reasonable dependence on the subscriptions; and this rule seems to be well established.” The death of the promisor before any liability has been incurred on the faith of the promise would of course serve to withdraw or revoke the promise.

We do not think that because the promise to give rests in parol it is unenforceable after it has been acted on. If the promise is found in a written subscription- by the promisor and others, the mutual promises furnish a consideration under our code. But the promise to give to a charitable purpose need not be in writing to be an enforceable contract, where the promisee has acted on the ■faith of it. So long as the promise is gratuitous it is without consideration; but when acted on, there is not only mutuality of contract but a consideration for the contract. If A promise to buy a house for his nephew, that is nothing; but if A promise to buy a house for his nephew, and request the nephew to enter into a contract of purchase in the nephew’s own name, and the nephew does so, the law implies a promise on the part of A to reimburse the nephew any part of the purchase-money which he may be called on to pay. Skidmore v. Bradford, L. R. 8 Eq. 134.

4. It was alleged that in a local newspaper owned by a company of which Mr. Estill was the president and the chief, if not the sole, stockholder, there appeared an article calling attention to the merits of the enterprise, giving a list of the subscriptions up to that time, which included a subscription of Mr. Estill for $500. It was further alleged that although Mr. Estill was cognizant that his subscription had been taken for $500, and that it had been so published to the world through his newspaper, he never repudiated or disavowed the same. The ground of the special demurrer was, not that - it was improper to plead evidentiary facts, but that the evidentiary facts pleaded were irrelevant. These allegations were relevant as tending to show an admission by Mr. Estill of his promise to donate $500 to the plaintiff for the purpose of eonstruct.ing the building.

Judgment reversed.

All the Justices concur.