Sullivan v. Corbett , 3 Kan. App. 390 ( 1895 )

The opinion of the court was delivered by

Johnson, P, J.:

This action was brought by the defendant in error to recover the sum of $1,000 and interest thereon on a certain written instrument signed by plaintiff in error, called a “mortgage donation.” The instrument sets forth that, for the purpose of obtaining the location at or near Wichita, Sedgwick county, Kansas, of such industries and other needed enterprises which the board of trade of the city of Wichita may be able to secure by the use of the property therein described, and in consideration of the benefits which he would derive from the location of such additional enterprises, etc. at said city, he thereby binds himself to execute and deliver, within 15 days from the signing of said instrument, a mortgage on certain lands to the plaintiffs below, defendants in error, to be held by them in trust, to be sold by them at such times and for such purposes as may be deemed best by and determined upon by resolution of the board of directors of the board of trade ' of Wichita; and upon the further trust, that if said mortgage is not used in good faith for such purposes within three years after the execution and delivery of said mortgage, then the mortgage shall be canceled and returned. In addition to the execution of said mortgage, the instrument recites that it is understood that the donor'is to give a negotiable promissory note, which said mortgage shall secure, in the sum of fl,-000, payable to said trustees or order, due in five years after date, with 7 per cent, interest, payable annually. This instrument is signed by the plaintiff in error only, but there is no acceptance of the trust in connection with the instrument; there is a blank at the end of this instrument in the following form :

“Witness my hand, this 20th day of September, 1888. I reside at No.-, - street, Wichita, Kan. Aethue Sullivan.

“September , A. D. 1888. We accept the above trust. ---

—-Trustees.”

The acceptance is not signed by the trustees. The instrument is in effect an offer on the part of Arthur Sullivan to make a donation to aid the board of trade of the city of Wichita in securing the location and establishing of industries and business enterprises at and near the city of Wichita; but there are no persons accepting the trust and obligating themselves to secure the location of the industries described by the proposed donor. It is true that the petition alleges that the plaintiffs below accepted the trust immediately upon the execution of the contract, and performed all the conditions and obligations imposed upon them by said contract, and repeatedly requested the defendant to execute and deliver to the trustees named the note and mortgage ; but the evidence shows that the trustees named in the written instrument never acquired the possession of it; that it was never delivered by Sullivan to the trustees or any persons named therein. This instrument bears date September 20, 1888, and the evidence shows that the persons named as trustees never held but one meeting, and that was on the 16th day of October-, 1888, and at this meeting they organized as a board, and elected certain persons of their number as'officers of the board, but did nothing in relation to the proposed donation by Arthur Sullivan. There is nothing in the evidence or the record of the board showing that the trustees named in the instrument ever in any manner accepted the proposition of Sullivan, or agreed to its terms. The instrument is entirely unilateral and without.any consideration to support it. There is nothing in the record to show either an acceptance of the trust proposed, or that the plaintiffs below, as. trustees of the board of trade of the city of Wichita, have expended any money or thing of value, or contracted any liability, incurred any obligation or in any way changed their condition on the faith of said written instrument or donation, or in anticipation that Arthur Sullivan would comply with the provisions contained therein. It was a mere proposition on the part of defendant in error, without mutuality. Nothing was to be done by the trustees, and it was optional with Sullivan whether he would comply with the proposition or not. He derived no benefit or advantage whatever from the proposition, and was under no legal obligation to perform its conditions. The court should have sustained the demurrer of the defendant belo'w to the evidence and rendered a judgment against the plaintiffs below for costs of suit.

The judgment of the court of common pleas is reversed, and the case remanded to the district court of Sedgwick county, with direction to sustain the demurrer of the defendant below to the plaintiffs’ evi- • dence and render judgment against the plaintiffs for costs of suit.

All the Judges concurring.