Magruder v. Belhaven Collegiate & Industrial Institute

(dissenting).

I cannot agree with the court in its construction of the written instrument referred to in the opinion. It will be noted that in all of the other donations and agreements embodied in the instrument'there are no qualifying words. They are all- definite and unqualified, depending alone upon the location of the college upon the lands offered by appellants.

*174The only matter in controversy' is the gift of one thousand five hundred dollars, and it seems to be evident that this sum of money would be paid to the college only in the event'the trustees decided to lay a sidewalk or purchase additional lands. It was left to thé board of trustees to decide whether this money would be expended for a sidewalk or for additional lands. The board elected to lay the sidewalk, and appellants paid for same. The college got the sidewalk. Appellants donated the sidewalk, and it seems to me that this was what appellants agreed to give. As I understand the opinion of the court, it is held that the gift of one thousand five hundred dollars was conditioned alone upon the laying of the sidewalk or the purchase of land. This construction amounts to this: The board could lay a cheap sidewalk through the property mentioned, costing one-fifth of. the amount donated, and thereby and because thereof they could demand and recover from appellants one thousand five hundred dollars.. The board could buy land of the value of one hundred dollars, and gain one thousand four hundred dollars by the trade.

So at last the court holds that this agreement to give one thousand five hundred dollars is an additional bonus to induce the college to adopt the site offered by app el-lands. In other words, the cost of the improvement — a sidewalk — is a mere inconsequential detail, and bears no relation to the amount of the conditional gift. It would seem that, if the donors meant this, they went a long way around to express a very simple purpose. I think it more reasonable to say that the intention was to donate one thousand five hundred dollars for the purpose of constructing a sidewalk, and for this purpose alone, should the board elect to apply the gift to this improvement, and if the sidewalk has been built and paid for by appellants, the spirit and intent of the contract has been fully satisfied. The purpose was to donate a sidewalk, if the board preferred a sidewalk, and not to give one thousand five *175hundred dollars, or any part thereof, for any other purpose than the purpose expressly mentioned.

I am unable to find anything in the writing’ to indicate that appellants agreed to give one thousand five hundred dollars, in addition to ¡other donations, in consideration of the location of the college on their lands. In my opinion the court has written into the agreement an obligation not assumed by appellants.

delivered the opinion of the court.

The declaration sets forth that appellants, on March 28, 1911, were endeavoring to persuade the trustees of a new college, which was to be. located? in or near the city of Jackson, to accept from them the donation of a site for the erection of the buildings of the college out of lands owned by them in the northeastern suburbs of the city; that appellants offered to the trustees, in addition to the site, other inducements, among which' was a cash offer of one thousand five hundred dollars, to be paid by them and expended by the college for laying a sidewalk to North State street or in purchasing additional land; that the trustees accepted the site and erected thereon a valuable college building, and that thereupon the one thousand five hundred dollars promised-became due and payable. The total amount of one thousand one hundred and fifty-seven dollars and fifty cents-was paid by appellants, and this suit is for the balance of three hundred and forty-two dollars and fifty cents. .

There is filed as Exhibit A to the declaration a copy of the agreement by appellants to make additional donations *172to the college, which is as follows: “To the Board of Trustees of Belhaven Collegiate & Industrial Institute— Gentlemen: In addition to the property described in an option given by J. R. Preston and assignees on March 1, 1911, we, the undersigned, hereby agree to donate to the college the following described property adjoining the-property heretofore donated: The south half of block 0, property of the IIollingsworth-Lott Company, and the north half of block four of the Magruder property. This block four is the property immediately south of block 0 of the North Belle View subdivision. In addition to this donation, we agree to join in and close Magruder avenue, from Peachtree street to Hawthorn street, and, if desired, to close Olive street, from Arlington street through to the first street couth of Magruder avenue. In addition to this, we agree to lay sidewalks on property owned by us as indicated by red lines on the map filed with our proposition. In addition to this, we have an agreement made to Dr. Hutton, by the owners of the Gillespie property, whereby a street will be run through their property to State street, a distance of five blocks. In addition to this, we will give you one thousand five hundred dollars in cash, that you may spend in laying a sidewalk through the Gillespie property, or purchase additional land east of the site donated, just as your board prefers. Witness our signature this 28th day of March, 1911, A. D. [Signed] The IIollingsworth-Lott Company, by Allen Thompson, Secretary. J. H. Magruder.”

Appellants filed a plea to the declaration, alleging that they were not indebted in the amount claimed by appel-lee; that the trustees preferred and elected to build a sidewalk, as provided in the agreement; that the cost of construction of the sidewalk was less than the amount already paid by them on their agreement; and that the payment by them of the cost of constructing the sidewalk was a fulfillment of their agreement and a discharge of the obligation sued on. To this plea appellee interposed *173a demurrer, setting forth as ground that neither the contract nor anything stated in the plea' limited to less than one thousand five hundred dollars the amount defendants obligated themselves to pay. -This demurrer was sustained.

The record shows a business transaction between appellants and the trustees of appellee;' Appellants desired to secure the location of the college on lands owned by them. Appellants offered to give the site, and then, as further inducement, agreed to donate more land to close certain streets or avenues,. to lay certain sidewalks on their property, and to give the trustees one thousand five hundred dollars in cash, which they could spend in laying out a sidewalk through a property where a street was to run, or to purchase additional land as they might prefer. Appellants were successful.in their, efforts, and the college was located on their property. We do not look upon this as a subscription to the construction of the sidewalk or purchase of land, but consider it’ an agreement by appellants to pay a certain sum upon the location of the college, and conditioned that a sidewalk be built or land be purchased. Appellee elected to lay the sidewalk. We do not see that the actual amount expended by appellee in the work concerns appellants. The sidewalk was constructed, and this fulfilled'appellee’s part of the agreement. It is our construction of the agreement that appellants were obligated to pay the full amount of one thousand five hundred dollars to appellee.

Affirmed.