Congregational Society in Troy v. Goddard

7 N.H. 430

• Court: Superior Court of New Hampshire
• Decided: July 15, 1835
• Status: Published

Opinion

Upham, J.,

delivered the opinion of the court.

It is agreed in this case, that the note in suit specifies only part of the contract which was made betwixt the parties, and that the articles of agreement, or subscription, bearing date the same day, and executed at the same time the note was given, constitute a part of the contract. The conditions, therefore, of the donation are part of the conditions of the note. They are, also, conditions precedent: which should be averred, or which should be- proved, at least, before the plaintiff can be entitled to recover.

One condition expressed on the face of the note, is that the sum of one thousand dollars should be raised before the defendant should be holden liable. It is averred that this amount was raised; and such is admitted to have been the fact, so that this condition presents no objection to the plaintiff’s recovery. But there are other conditions, not,appear-c ing on the face of the note, but in the agreement,-which must equally be complied with before the plaintiff can re- ' cover.

One condition is, that said Congregational Society shall raise a sum at least equal to the proceeds of said donations annually, to be appropriated in the same manner as the amount raised by said subscriptions.

■It does not appear that this sum was raised for the year 1833. It only appears, by the oath of the treasurer of said Society, that the sum paid the clergyman employed, for four Sabbaths of his services, and board — amounting to forty-seven dollars and fifty cents — was paid out of the common fund raised by said Society, and from the amount subscribed by the individuals on the instrument to which this defendant was a party. But this constitutes no evidence that the amount raised by the Society was equal to the proceeds of said subscription. It is not unlikely, however, that this condition may have been complied with.

But there is another objection, which is insuperable ; and that is, that the minister employed .must be such as a majority of the Congregational Church in said town shall approve, after having been employed four Sabbaths. -

As the Society took notes to constitute a fund, which remain to the present time uncollected, except the annual interest on the same, payment of the notes cannot now be enforced, if the conditions on which the fund was constituted have been violated.

The condition, that the clergyman employed should be duly approved by the Church, is imperative. The donors could affix such condition as they saw fit to their donation; and if the Society accepted of it, the presumption would be that the donation was deemed a valuable acquisition, notwithstanding the restrictions imposed upon it, and the Society were bound to act in good faith in its application.

The design of the donors was to contribute liberally of the jr own funds, to induce the Society to contribute to the game extent; and the condition imposed by them was that this money should be appropriated in the employment of a minister whose sentiments they approved, and who might be approbated by the Church worshipping in connexion with the said Society ; and the Church was to have the term of four weeks to approve, or disapprove, of the clergyman employed.

It may be said that the Society would be put to repeated trials and expense before an individual would be found who would be satisfactory; but, on the other hand, if the donors were to pay the expense during the term of trial, individuals might be designedly employed who it was known would not be approbated ; and thus the entire proceeds of the money subscribed be applied contrary to the design of the donors. The condition, therefore, was essential to secure an application of the funds which would be satisfactory to the donors.

As this condition was not complied with, and an individual was employed whom the Church did not approve, who, notwithstanding this, was paid out of the common fund raised by the Society and by individuals, there has been a misapplication of the money subscribed, and a breach of the condition on which the fund was established.

The articles of subscription are, that “ so long as the ‘conditions specified therein shall be complied with, the ‘ money subscribed shall remain good to said Society ; but ‘ when the proceeds shall be misapplied, or the conditions of ‘ the donation shall not be truly complied with, in such case ‘ the money subscribed shall be forfeited to the subscribers, ‘their heirs, executors and assigns forever.”

No .exception was taken in this case as to the declaration, on the ground that it was payable on a contingency, and that it therefore was not strictly a promissory note. Such an exception was overruled in Odiorne vs. Odiorne, 5 N. H. Rep. 315.

It has been customary in this state and Massachusetts declare upon notes payable out of a particular fund, or on a contingency, in the same manner as on notes strictly negotiable. The acknowledgement of value received in a note not strictly negotiable, is prima facie evidence of a consideration. 7 Johns. 321, Jerome vs. Whitney.

There is no doubt that the original consideration of this note was sufficient to sustain this action. In Bowtell vs. Cowdin, 9 Mass. 254, a different doctrine was holden ; and it was there decided that a promissory note made in aid of a fund for the support of a minister of a parish, was void for want of a consideration.

Notwithstanding the important public bearing of this decision, no reasons were assigned for it. It was merely said that the objection that the promise declared on was made without a good consideration, was well founded. But this principle was found to be applicable to a great variety of analogous cases in important public objects ; and in subsequent cases, slightly variant from it, a different doctrine has since been holden. The court have also since remarked, that the case of Bowtell and Cowden did not depend necessarily on the point above adverted to ; and that portion of the decision may be considered as overruled.

It is now holden in Massachusetts, that where several individuals subscribe sums to constitute a fund, the income of which is to be devoted to the support of a minister, and a note has been subsequently given, it is a sufficient consideration for the promise, and cannot be contradicted. Fisher vs. Ellis, 3 Pick. 322. The same point was also decided in the Trustees of the Church and Congregation of Hanson vs. Stetson, 5 Pick. 506, and Amherst Academy vs. Cowls, 6 Pick. 427. See, also, First Religious Society in Whitestown vs. Stone, 7 Johns. 112; George et al. vs. Harris, 4 N. H. R. 533; Trustees of Farmington Academy vs. Allen, 14 Mass. 172; Chester Glass Company vs. Dewey, 16 Mass. 94; Homes & al. vs. Dana, 12 Mass. 190; Salem Mill Dam. Corp. vs. Ropes, 6 Pick. 23; Bryant vs. Goodenow, 5 Pick. 228.

In this case a verdict was taken for the defendant; and for the reasons named on the first point there must be

Judgment on the verdict.