By the Gourt,
E. Darwin Smith, J.
The decision of the county court in this case, reversing that of the justice, I think, was right, and is sustainable, within the cases of Barnes v. Perrine, (9 Barb. 210; S. C., 15 id. 249, and 2 Kern. 18;) McAuley v. Billenger, (20 John. 89;) Farmington Academy v. Allen, (14 Mass. Rep. 172;) Amherst Academy v. Cowles, (6 Pick. 427;) and Religious Society of Whitestown v. Stone, (7 John. 113.) The defendant, with others, made his subscription to raise an amount sufficient to induce the Wayne county Baptist association to establish and found a collegiate institute, to be located in his own village, at Newark, in said county; which subscription was also used to induce the board of regents to grant a charter for such institution, in which charter the defendant was named as one of the trustees of said corporation. The in[581]*581stitution being incorporated, in pursuance of such application, the defendant acted as one of the trustees, and paid two installments upon his subscription, to the collector appointed by the trustees, to enable the plaintiff to go on with the erection of the collegiate buildings, and did not refuse to act as trustee, or to pay upon his subscription, until after contracts had been made, and proceedings had been taken, to erect the buildings, and large expenses for that purpose incurred. Upon these facts, I think he must be deemed to have requested the corporation to proceed with the erection of the buildings described in the subscription paper, and to have sanctioned and affirmed his subscription and the acts of the trustees in incurring expense towards the erection of the college edifice. So far as liabilities were assumed, or expenses incurred, by the plaintiff before the defendant repudiated his subscription, no doubt can, I think, be entertained that he must be liable to pay his proportionate share of such liabilities and expenses, on the ground that they were incurred at his request. But if his obligation is fulfilled when such liabilities are discharged and expenses paid, the college edifice which the plaintiff was engaged in erecting must remain unfinished, unless contracts were previously made to. complete the whole work, and the whole enterprise of founding and establishing a noble institution of learning, according to the plan of the original subscription, must probably be entirely abandoned; for if the obligation assumed in the subscription papers is binding upon the' defendant only to the extent of liability and expense incurred before its repudiation, most of the residue of the subscription will probably not be paid. This action, I presume, is a pioneer suit, to ascertain by the decision of this court whether the original subscription is valid. For it appears that about cotemporaneously with the refusal of the defendant to make further payments Upon his subscription, the work of erecting the college edifice was suspended. In the case of Barnes v. Perrine the church had been erected, when the suit was brought; [582]*582and the trustees had taken down the old church, and erected a new one in its place, on the faith of the subscription, at a cost of more than $6000. And in the case of the Trustees of Farmington Academy v. Allen, the trustees of the academy, on the faith of the funds raised by the subscription, had proceeded to erect a building for the use of the institution. In both these cases the whole work could properly be claimed to have been performed for the defendants, respectively, and they were liable therefor, as for money paid or expended at their request. But upon this ground, the liability to pay upon the subscription must cease with the request; and such request could not be implied, after an express refusal to make further payments, and a distinct repudiation of the subscription. Regarding the liability upon such subscription paper as based upon an extrinsic request outside of the subscription paper itself—though-a correct assumption, as far as it goes—it seems to me this is placing the principle upon which the liability rests, on toe-Safro ground. • .....
I think it is to be regretted that the more liberal ground suggested by Chancellor Walworth in Hamilton College v. Stewart (2 Denio, 416) of mutual promises; or the ground suggested by Chief Justice Eelson, in the same case, (Id. 408,) was not sustained by the court of appeals, in that case. (1 N. Y. Rep. 582.) I am by no means satisfied that in this country, where all our religious, educational and charitable institutions are founded by voluntary associations, and dependent upon private liberality, the personal benefit to be derived from the erection of a church edifice for worship by himself and family, or the erection of an academy or other institution of learning in his immediate neighborhood, for the education of his children, are not works involving a sufficiency of private interest to every citizen, and of pecuniary benefit, to maintain a promise expressly and distinctly made, received and acted upon in the erection of buildings for such purposes. But the view is clearly repudiated, in most of the [583]*583cases, and it is perhaps too late to say that it is a view of the question altogether too narrow for this great continent, over which civilization, law and religious and educational institutions are to he spread and maintained purely upon the voluntary principle.
But I think the subscription in this case, and this class of subscriptions generally, can be based upon another ground, which to me seems impregnable. I think the subscription here should be regarded as a conditional promise or proposition to pay to the plaintiff the sum of $100 towards the expense of erecting an institution of learning in the manner, and upon the terms, and of the description specified in the subscription paper signed by the defendant and others, in question in this action. The subscribers to that paper do therein severally agree well and truly to pay the several sums set opposite their respective names, to the treasurer of a board of trustees; “ said money to be 'expended in the erection of an institution of learning, to be built of brick, at least three stories high, and capable of accommodating 500 pupils,” &c., and “ located at Newark.” This subscription paper, I think, means and is, in substance and legal effect, the same as though it read as follows : “We the subscribers severally agree with the Wayne and Ontario Collegiate Institute, that in consideration that the said corporation will proceed to erect a building for an institution of learning, at Newark in the county of Wayne, capable of accommodating 500 pupils, in manner and style as herein particularly specified, we will pay to such institution the sum set opposite our respective names; provided that not more than one fourth is called for in one year’s time.” This is, in substance, the proposition of the defendant as one of the subscribers to these papers. It is a conditional bargain or agreement on his part, binding when accepted, adopted and acted upon by the plaintiff.
promises or propositions to pay money upon condition, or upon the happening of some event, or the doing [584]*584of some act, or incurring some expense, loss or legal obligation, become binding as legal and valid contracts upon acceptance and performance of the stipulated condition. (Story on Cont. 453. 12 Mass. Rep. 140. 14 id. 172, 176. 5 Pick. 384.
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By the Gourt,
E. Darwin Smith, J.
The decision of the county court in this case, reversing that of the justice, I think, was right, and is sustainable, within the cases of Barnes v. Perrine, (9 Barb. 210; S. C., 15 id. 249, and 2 Kern. 18;) McAuley v. Billenger, (20 John. 89;) Farmington Academy v. Allen, (14 Mass. Rep. 172;) Amherst Academy v. Cowles, (6 Pick. 427;) and Religious Society of Whitestown v. Stone, (7 John. 113.) The defendant, with others, made his subscription to raise an amount sufficient to induce the Wayne county Baptist association to establish and found a collegiate institute, to be located in his own village, at Newark, in said county; which subscription was also used to induce the board of regents to grant a charter for such institution, in which charter the defendant was named as one of the trustees of said corporation. The in[581]*581stitution being incorporated, in pursuance of such application, the defendant acted as one of the trustees, and paid two installments upon his subscription, to the collector appointed by the trustees, to enable the plaintiff to go on with the erection of the collegiate buildings, and did not refuse to act as trustee, or to pay upon his subscription, until after contracts had been made, and proceedings had been taken, to erect the buildings, and large expenses for that purpose incurred. Upon these facts, I think he must be deemed to have requested the corporation to proceed with the erection of the buildings described in the subscription paper, and to have sanctioned and affirmed his subscription and the acts of the trustees in incurring expense towards the erection of the college edifice. So far as liabilities were assumed, or expenses incurred, by the plaintiff before the defendant repudiated his subscription, no doubt can, I think, be entertained that he must be liable to pay his proportionate share of such liabilities and expenses, on the ground that they were incurred at his request. But if his obligation is fulfilled when such liabilities are discharged and expenses paid, the college edifice which the plaintiff was engaged in erecting must remain unfinished, unless contracts were previously made to. complete the whole work, and the whole enterprise of founding and establishing a noble institution of learning, according to the plan of the original subscription, must probably be entirely abandoned; for if the obligation assumed in the subscription papers is binding upon the' defendant only to the extent of liability and expense incurred before its repudiation, most of the residue of the subscription will probably not be paid. This action, I presume, is a pioneer suit, to ascertain by the decision of this court whether the original subscription is valid. For it appears that about cotemporaneously with the refusal of the defendant to make further payments Upon his subscription, the work of erecting the college edifice was suspended. In the case of Barnes v. Perrine the church had been erected, when the suit was brought; [582]*582and the trustees had taken down the old church, and erected a new one in its place, on the faith of the subscription, at a cost of more than $6000. And in the case of the Trustees of Farmington Academy v. Allen, the trustees of the academy, on the faith of the funds raised by the subscription, had proceeded to erect a building for the use of the institution. In both these cases the whole work could properly be claimed to have been performed for the defendants, respectively, and they were liable therefor, as for money paid or expended at their request. But upon this ground, the liability to pay upon the subscription must cease with the request; and such request could not be implied, after an express refusal to make further payments, and a distinct repudiation of the subscription. Regarding the liability upon such subscription paper as based upon an extrinsic request outside of the subscription paper itself—though-a correct assumption, as far as it goes—it seems to me this is placing the principle upon which the liability rests, on toe-Safro ground. • .....
I think it is to be regretted that the more liberal ground suggested by Chancellor Walworth in Hamilton College v. Stewart (2 Denio, 416) of mutual promises; or the ground suggested by Chief Justice Eelson, in the same case, (Id. 408,) was not sustained by the court of appeals, in that case. (1 N. Y. Rep. 582.) I am by no means satisfied that in this country, where all our religious, educational and charitable institutions are founded by voluntary associations, and dependent upon private liberality, the personal benefit to be derived from the erection of a church edifice for worship by himself and family, or the erection of an academy or other institution of learning in his immediate neighborhood, for the education of his children, are not works involving a sufficiency of private interest to every citizen, and of pecuniary benefit, to maintain a promise expressly and distinctly made, received and acted upon in the erection of buildings for such purposes. But the view is clearly repudiated, in most of the [583]*583cases, and it is perhaps too late to say that it is a view of the question altogether too narrow for this great continent, over which civilization, law and religious and educational institutions are to he spread and maintained purely upon the voluntary principle.
But I think the subscription in this case, and this class of subscriptions generally, can be based upon another ground, which to me seems impregnable. I think the subscription here should be regarded as a conditional promise or proposition to pay to the plaintiff the sum of $100 towards the expense of erecting an institution of learning in the manner, and upon the terms, and of the description specified in the subscription paper signed by the defendant and others, in question in this action. The subscribers to that paper do therein severally agree well and truly to pay the several sums set opposite their respective names, to the treasurer of a board of trustees; “ said money to be 'expended in the erection of an institution of learning, to be built of brick, at least three stories high, and capable of accommodating 500 pupils,” &c., and “ located at Newark.” This subscription paper, I think, means and is, in substance and legal effect, the same as though it read as follows : “We the subscribers severally agree with the Wayne and Ontario Collegiate Institute, that in consideration that the said corporation will proceed to erect a building for an institution of learning, at Newark in the county of Wayne, capable of accommodating 500 pupils, in manner and style as herein particularly specified, we will pay to such institution the sum set opposite our respective names; provided that not more than one fourth is called for in one year’s time.” This is, in substance, the proposition of the defendant as one of the subscribers to these papers. It is a conditional bargain or agreement on his part, binding when accepted, adopted and acted upon by the plaintiff.
promises or propositions to pay money upon condition, or upon the happening of some event, or the doing [584]*584of some act, or incurring some expense, loss or legal obligation, become binding as legal and valid contracts upon acceptance and performance of the stipulated condition. (Story on Cont. 453. 12 Mass. Rep. 140. 14 id. 172, 176. 5 Pick. 384. 6 id. 433. 12 id. 129. L’Amoreux v. Gould, 7 N. Y. Rep. 349. Hilton v. Southwick, 17 Maine Rep. 303.) Upon this principle all difficulty in regard to this class of subscriptions seems to me obviated, and a recovery upon them can be had without resorting to the questionable expedient of patching up a contract by extrinsic paroi evidence, from which to help out the subscription paper by the implication of a promise. The object of the subscription is expressed in the paper itself. The terms upon which the defendant agrees to pay are therein specified. When these terms are complied, with, or engagements and liabilities incurred on the faith thereof, a complete contract is made, and the liability of the defendant has become absolute. Upon the faith of the engagement contained in the subscription paper signed by the defendant, the plaintiffs were, in my opinion, entitled to go on and make, contracts, and incur liabilities, for the erection of the college edifice. And when they had ■proceeded to do so in good faith, the proposition of the subscription paper should be deemed accepted, and the liability of all the subscribers to such paper fixed, and they, and each and every of them, should be held thereafter legally bound to pay their and his subscription, in manner and form as specified in the said proposition or subscription by them signed respectively.
[Monroe General Term,
December 2, 1861.
Welles, Smith and Johnson, Justices.]
The judgment should be affirmed.