Thompson v. Page

42 Mass. 565

Opinion

Shaw, C. J.

The liability of the defendant, in the present case, depends upon the construction of the agreement executed by him. It recites that the Second Universalist Society in Lowell, which was at the time an unincorporated association, were in want of a suitable house of worship, and were desirous that such a house should be erected as soon as funds could be furnished for that purpose ; it recites also their intention to become incorporated forthwith, and to divide the stock into shares of twenty-eight dollars each, or, at the option of subscribers, to subscribe twenty-five dollars a share, without certain privileges. Then the subscribers, for the purpose aforesaid, and in consideration of the mutual promises therein made, mutually agreed to take the amount of stock subscribed by each, and to pay into the hands of a treasurer, to be chosen, &c., one half in three months, and one half in three months more; said treasurer to give bond, with surety, to persons to be appointed, &c., to secure the faithful management of the moneys, and the payment of the same to the treasurer to be chosen and qualified under the act of incorporation, when duly requested. It further provided that said treasurer, when chosen as aforesaid, should have full power in his own name to sue and collect the shares of said subscribers, and to cause the same to be paid into his hands, unless voluntarily paid according to the terms of the instrument. The instrument contains some other provisions, not considered essential to the question. It was subscribed by the defendant for twenty shares, and by a great number of other persons. The society was duly incorporated in March following The plaintiff was chosen treasurer by the associates, and gave bonds, in all respects conformably to the terms and provisions of the agreement.

The question is, whether an action can be maintained by the plaintiff in his own name, for the amount of the defendant’s subscription.

A question was made at the argument, whether this was to be deemed a promise to the treasurer, first provided for, to be chosen before the organization, or the treasurer to be chosen by the corporation, when organized. It appears to the court, that this does not admit of a doubt. The obvious purpose was to raise funds, before the act of incorporation, c< so,” as it is expressed in the agreement, “ that they may commence operations as soon as the act of incorporation is obtained.” It was therefore an express promise to pay to the' treasurer of the associates, when chosen and qualified as therein specified, with an express authority to him to sue for the same, if not paid voluntarily.

We think it is no sufficient objection to the plaintiff’s legal right to recover, that he was not the person to whom the promise was made, at the time of subscription. Until some person was chosen a treasurer, it might be considered as an offer only, or a revocable promise ; but if before any revocation of such promise, the plaintiff was chosen and qualified, then it is the same as if the promise were made to the plaintiff by name. Where one offers to pay any person who shall peform a particular service, as a reward for the restoration of lost property, or for information on a particular subject, the person who shall perform the service, or give the information, before the offer is withdrawn, becomes the party to whom the promise is made, as if made to him by name. In Fisher v. Ellis, 3 Pick. 322, a promise to a parish treasurer, and his successors, for the benefit of the parish, was held to be a promise to each successive treasurer, to be chosen; and a promise on which an action would lie by a treasurer chosen long after the promise. It is not put on the ground that treasurers of towns and parishes may by statute sue on promises to their predecessors ; though perhaps the decision may have been influenced thereby. But that cáse is a strong authority in favor of the plaintiff in other parts of the case.

There being then an express promise, made by the defendant to die plaintiff, to pay him a sum of money, for the use of the associates, the principal question is, whether there appears to be a sufficient consideration for that promise, to support an action. The general doctrine on this subject was so much considered, and the cases so fully reviewed, in Amherst Academy v. Cowls, 6 Pick. 427, that it is unnecessary to consider them at large. The object of the associates was to raise a fund, to be invested in a house, in which all the associates were to have an interest, in proportion to the number of their respective shares. This was to be done through the medium of an act of incorporation, in which the defendant was to be included. Such an act of incorporation was in fact obtained shortly after, and before the defendant’s promise was rescinded or revoked. By force of this act, and under the denomination of an <{ associate,” the defendant became interested in the stock and property of the corporation. And although the legal interest in such stock and property was in the corporation, yet the defendant had an equitable interest, as cestui que trust, for which he had a remedy by bill in equity, if his right should be called in question. When the consideration moves from one or more persons, and by their appointment the promise is made to a third person, for their benefit, it is a good consideration for such promise, and the person to whom such promise is made, may maintain an action upon it. 3 Pick, ubi sup. McAuley v. Billenger, 20 Johns. 89. If il be said that at the time the subscription was signed by the defendant, it was contingent and uncertain whether an act of incorporation would be obtained, and so the promise was contingent ; one answer has already been alluded to, which is, that even if that circumstance rendered the promise revocable and conditional, yet if not revoked nor rescinded until such act of incorporation was passed, the consideration then became complete, and the promise absolute. Such act of incorporation was obtained before the first demand was made on the defendant. But we think there is another legal and satisfactory answer. There was a consideration moving from the plaintiff himself in the fact that he gave bond, with sureties, to persons appointed by the associates, conditioned to take care of the fund so to be collected, and account for the same, and pay over the amount to the treasurer of the corporation, when requested. Now, if no act of incorporation should ever be obtained, the plaintiff would have been liable, as trustee, to account for the money thus received, to the associates respectively, according to their respective proportions. The adequacy or sufficiency of the consideration is not material to this question. The giving of a bond with sureties is a burdensome service, and if done at the request and for the benefit of another, is a good legal consideration for an express promise. Suppose, for instance, that a contract were made, in these terms : B. in consideration that A. will give bond with surety to appropriate and pay over certain moneys, to be contributed by himself and the rest of the alphabet, to a use, in which B. has an interest, promises to pay A. a certain sum, and A. in pursuance of this promise gives bond accordingly ; we think it is a good legal consideration for the express promise by B. to pay a sum of money. Whether, therefore, it be regarded as a promise made to the plaintiff by appointment of the associates for their benefit, and on a consideration moving from them, and consisting of a benefit to the defendant, in the interest he was to have in the corporate fund ; or as a promise made to the plaintiff on a consideration moving from himself; the court are of opinion that it was a valid promise, upon which this action may be maintained.