Ladies' Collegiate Institute v. French , 82 Mass. 196 ( 1860 )

Chapman, J.

The signatures of the defendants to the subscription papers declared on being admitted, the defendants object that those who prosecute this action have no right to do so under the St. of 1854, c. 342, by which the institute was chartered, and the St. of 1855, c. 174, by which the corporators were authorized to locate it at such place as they should select. The objection rests upon the fact that on the 6th of June 1854 the three corporators named in the first act met, together with twelve other persons whom they elected as their associates, and organized the corporation by the choice of officers; and that they afterwards proceeded to act as an organized corporation for about a year. It is contended that the power of the corporators to organize under the charter was thereby exhausted ; and therefore there could be no new organization that would be valid.

It appears that in July 1855 the corporators called a meeting in a formal manner, alleging that their proceedings had thus far been informal. This meeting was held on the 24th of July, and they then organized conformably to the provisions of the Revised Statutes, and elected twelve associates, some of whom were the same that had been previously elected, and others were not. They have ever since acted under this organization, without any objection on the part of the members who were not re-elected as associates, so far as appears; they have held and managed the property of the corporation, and this action is brought by their authority.

The book containing the minutes or record of the first organization and the proceedings under it exhibits great irregularities and lack of skill in conducting such matters. But whether the defects were such as to render the proceedings void, it is not necessary to determine; for we are of opinion that if the corporators and their associates, fearing that there might be some question respecting the validity or regularity of their acts, chose to reorganize, they might legally do so, and thus correct their real or supposed errors. And if some of the original associates were omitted in the new organization, and others were elected in their stead, the identity of the corporation would not thereby be changed, nor would other persons have a right to complain, if the original associates acquiesced, as they seem to have done. The franchise is not a mere naked power, as the defendants contend; it is rather a property, to be held and managed for the purposes indicated in the charter during the term for which it is granted, unless it is forfeited and taken away at an earlier period.

The second objection is that the promises of the defendants, being mere subscriptions to the funds of the institute, are without consideration, and therefore void. Subscriptions of this character have-been made the subject of litigation in many instances; and the earlier cases in our reports contain dicta some of which have not been sanctioned by later decisions. But in the cases of Amherst Academy v. Cowls, 6 Pick. 427, Williams College v. Danforth, 12 Pick. 541, and Thompson v. Page, 1 Met. 565, their validity is established, and the ground of it is definitely stated. It is held that by accepting such a subscription the promisee agrees on his part with the subscribers, that he will hold and appropriate the funds subscribed in conformity with the terms and objects of the subscription, and thus mutual and independent promises are made, which constitute a legal and sufficient consideration for each other. They are thus held to rest upon a well settled principle in respect to concurrent promises.

In the present cases, the defendants’ promises were accepted by the plaintiffs before there was any attempt to revoke them, and the plaintiffs have established the school and maintained it to the present time. Failure of a consideration originally good is not pretended, and there exists ample power to regulate and enforce the trust assumed by the plaintiffs for the future. The location at Worcester was legal under the amended charter, and none of the defendants show any just cause on their part to complain of the expediency or propriety of this location.

Judgments on the verdicts for the plaintiffs.