Gittings v. Mayhew

Tuck, J., delivered the opinion of this court. It is not necessary to express an opinion upon all the pro ¹³⁰ positions presented by this record.- But, as some of them are particularly interesting to the community in which this contest arose, it is proper, after the full consideration they have had by counsel, that they should be decided.- We pass by the objections made to the generality of the first prayer, in view of the act of 1825, eh. 117, because, if they availed against that prayer, the point on which the judgment must be reversed is presented distinctly by the fourth prayer,, and also by the second, if, (as- we think- we should in this case,) the- court discard the strict grammatical construction placed upon it by the appellee’s counsel, and give to it that interpretation which we have no doubt it received in the trial below. The questions we propose to consider are, as to the validity of agreements like the present, and the proper party to enforce them. It was insisted-, on the part of the appellant, that the plan and terms of the-agreement are so vag.ue and uncertain, that the law will not recognize any obligation to pay this money.

In other words, that they do not amount to a contract in law. And, first, it is said that the term. “ Atheneum”'conveys to the mind no definite idea, and that the alleged contract is void for the want of a sufficient and certain'subject.. We are not to determine questions of this kind according to the uses to which such buildings were devoted among the ancients. The meaning of this term was well known among the- Greeks and Romans as designating a public place where professors of the liberal arts held their assemblies, rhetoricians declaimed, and poets recited.

In modern days, however, the name has- been frequently bestowed upon establishments- connected- with literature, science, and the arts, whether devoted to one or more branches of learning. There are many such institutions in this country. Probably no two of them are the same in origin, design or government, yet each, looking to its character and object, may very appropriately be called an Atheneum. We do not consider this a sufficient objection to the validity of the subscription.

It was also urged, that even if the term “Atheneum” be sufficiently definite, there was no consideration- for the agree ¹³¹ ment. The effect of undertakings of this kind has been considered in many of the courts of this country; they have not been always enforced, but where the actions have failed it has been, generally, on some purely technical ground, and not because such promises were deemed merely gratuitous, and not the subject matter of suits at law. In some cases the courts, in furtherance of what they deemed a recognized public policy, have felt themselves warranted in relaxing, to some extent, the rigor of the common law, and have held the subscribers liable, when, perhaps, upon strict principles, there was not a legal consideration for the contract. The maintenance of such institutions is certainly of the highest merit. 'Whether projected for literary, scientific or charitable purposes, they address themselves to the favorable consideration of those whose success in life may have enabled them, in this way, to minister to the wants of others, and at the same time promote their own interests, by elevating the character of the community with whose prosperity their fortunes may be identified.

Indeed, considering the number of these institutions, erected and maintained by private munificence alone, the cases are very rare in which subscribers have refused compliance with their engagements. Instances may occur in which parties, feeling themselves released in consequence of a failure of expectations reasonably entertained at the time of making the subscription, might avail themselves of legal defences without justly forfeiting the good opinion of those who embarked with them in the enterprise. The propriety, however, of employing such means of resisting payment the parties must determine for themselves. Upon that portion of the present case, therefore, so much contested at the bar, we decline expressing any opinion.

In whatever uncertainty the law concerning voluntary sub- ; scriptions of this character may be at this time, in conse- \ quence of the numerous decisions pronounced upon the subject, it appears to be settled,jtliat where advances have been made, or expenses or liabilities incurred by others, in consequence of such subscriptions, before notice of withdrawal, ¹³² 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. 1 Parsons on Contracts, 378. Story on Contracts, sec. 453. The decisions have certainly gone to this extent — • many of them much further — in sustaining actions on such agreements, as the cases cited in the argument show. The doctrine is not only reasonable and just, but consistent with the analogies of the law.

We cannot doubt that the present appellant made himself responsible for the amount claimed, according to this view, of the law. The parties to the plan agreed to pay, when a certain amount should be subscribed, in instalments to be required by the building committee. That amount