New-London Literary & Scientific Institution v. Prescott , 40 N.H. 330 ( 1860 )

Doe, J.

The note was given for the first instalment of the subscription, and not to settle a suit or disputed claim, and has no other consideration than the consideration of the subscription, and the case is as if the note had not been given.

The only question is, whether $500 was raised in the city of Concord by Coming’s subscription. Coming subscribed solely upon Gilmore’s promise to see the subscription paid, and, from the facts stated, the conclusion is unavoidable that the plaintiff, by its agents, procured Gilmore to procure Corning to subscribe, with an understanding between the plaintiff and Gilmore that neither Gilmore nor Corning should pay anything. If Coming had nominally subscribed $5,500, the whole amount necessary to make Prescott’s subscription binding, for the sole purpose of making it binding, and upon an express agreement with the Institution that he should pay nothing, and that agreement were carried out, it would probably not be claimed that Prescott would be liable. And the case is not changed by the introduction of Gilmore as an agent or sub-agent. Coming’s subscription was evidently obtained for the purpose of binding Prescott. It was not understood by Corning, Gilmore, or any of the plaintiff’s agents, that Coming was to pay it. It has not been paid by Corning, or by any resident of Concord, but it has been nominally paid, and probably with the plaintiff’s money. "When Prescott made it a condition precedent that $6,000 should be raised in Concord, he did not understand that the condition would be fulfilled by subscriptions of residents of Concord which the plaintiff should never collect, or expect or intend to collect, and which it should be agreed at the time of making the subscriptions should not be collected. Whether the term “raised” means “subscribed,” or “paid,” the amount of Coming’s subscription was not raised in Concord, within the meaning of the term, as used by Prescott. To say that Corning was able and legally liable to pay, is to say that form is sufficient, and substance unessential. A creditor is not bound by a deed of his debtor, fraudulent as to him, although the form of the conveyance may be unexceptionable, and although the debtor may have conveyed his property, without consideration, beyond his power to recover it, if his grantee chooses to hold it. If Corning could not have legally avoided payment in case the plaintiff had attempted to enforce it, that fact would not conclude the rights of the defendant, but he may inquire whether Coming’s subscription was intended to be what it appeared, or whether' it was intended to be a very different thing.

Judgment for the defendant, unless the plaintiff elects a trial by jury.