Citations
- 1 N.Y. 581
Full opinion text
Gardiner, J.,
delivered the opinion of the court. The conclusive objection to the maintenance of this action is the want of consideration for the undertaking of the defendant. This is not a case of mutual promises where the undertaking of one party is the consideration for. the promise of the other. (Livingston v. Rogers, 1 Caines’ Rep. 534; Chit. Pl. 296.) This was so adjudged by the supreme court when the case was before them upon demurrer to the declaration. As I read the agreement, there is no engagement whatever upon the part of the plaintiffs, or any other person, to do or forbear to do any thing as a consideration for the promise of the defendant. The clauses in the instrument to which we are referred by the counsel for the plaintiffs, are mere conditions limiting the liability of the defendant, or designating the purpose to which his money, when paid, is to be applied. The subscribers say that they will not pay any thing unless the sum of $50,000, including their subscription, shall be invested, and the interest shall be applied to the payment of the salaries of the officers. But the corporation do not undertake that that sum shall be subscribed, or that any other person will endeavor to procure subscriptions, or that they will make the investment or appropriate the income of the fund to the purpose designated. The corporation have not executed the agreement, and there is nd evidence that they knew of its existence until after the subscription of the defendant. The first count of the declaration, which is founded upon mutual promises, is not therefore sustained by the agreement.
The second count, upon which the chief reliance is placed, seems to have been framed with a view to the suggestions of C. J. Nelson contained in his opinion attached to the case. This count proceeds upon the supposition that the agreement furnished evidence of a request to the plaintiffs by the defendant to perform certain services, in consideration of which he promised to pay them the sum of §800. If this is the true construction of the writing, the right of the plaintiffs to the subscription money is unquestionable. The cases referred to by the chief justice, and others cited upon the argument, are quite conclusive to show that the value of the services, or the amount of the consideration, is of no importance where a stipulated sum is agreed to be paid for the performance of a specific service. (Sturlyn v. Albany, Cro. Eliz. 67; Id. 469 ; 1 Sel. 32; Saund. Pl. & Ev. 147.) In looking at the contract, however, vve meet with the same difficulty, in another form, to which I have alluded in reference to the first count of the declaration. There is no request by the subscribers that the plaintiffs shall do any thing. They agree to pay the trustees of Hamilton College the sums by them severally subscribed, and then add, “ that we shall not be holden to pay the sum subscribed by us, unless the aggregate of our subscriptions and of contributions to this object shall, by the 1st of July, 1834, amount to §50,000,”