Dansville Seminary v. Welch

I think the plaintiff was improperly nonsuited. The action was brought to recover the amount due on a subscription by the defendant to pay $200 to the trustees, or a committee to be appointed by the East Genesee conference of the Methodist Episcopal church, for the purpose of purchasing premises and erecting or providing a seminary building or buildings and apparatus, to be located in the town of North Dansville in the county of Livingston, and to be under the supervision and control of the East Genesee conference, in the same manner that the Genesee Wesleyan Seminary at Lima was under the supervision and control of the Genesee conference before the division of the conference. The subscription contained, among other things, a further provision that the said conference should establish and put in operation a seminary in said town with all reasonable dispatch. It was not to be binding until the sum of at least $15,000 was in good faith subscribed by responsible persons, “nor until said conference shall by resolution'agree to accept the trust herein provided, and shall nominate and ratify the appointment of trustees or committee, to receive said money and expend it for the purpose hereinbefore mentioned.” There were other provisions in the subscription which are not necessary to be referred to for the purpose of deciding the motion for a new trial. It bears date Dansville, July 30, 1857.

Evidence was given on the trial tending to show that at least the sum of $15,000 was in a short time subscribed in good faith by responsible persons. That at a regular session of the East Genesee conference of the Methodist Episcopal church, held at Canandaigua on or about the 18tli day of August, 1857, the conference 'by resolution duly accepted the trust reposed, and assumed the responsibility of directing *224the proposed enterprise, on the terms proposed in the subscription ; and also by resolution appointed eighteen persons by name as the first board of trustees of said institution, with instructions to hold their first meeting in the first Presbyterian church in the village of Dansville on the 1st day of September next thereafter, at 2' o’clock P. M., and authorized said board to organize and obtain a suitable- charter for the institution of learning, which charter was to contain a provision for the renewal of said board by an annual election of at least six trustees from persons nominated from the East Genesee conference. Other resolutions were adopted by the conference, not material to be here mentioned.

Subsequently, and by a charter bearing date January 14, 1858, the trustees named in the resolution of the conference were duly incorporated by the regents of the university, under the name of “Dansville Seminary.” The charter recited that Samuel W. Smith and others had in due form made application for the charter; that certain subscriptions had been obtained, and certain amounts contributed, for the endowment of said academy, and that they, the said applicants, were the subscribers and contributors for more than one-half of said amounts, and requesting that the said academy might be incorporated, &c., and nominating the persons named in the charter as the first trustees thereof. The charter was read in evidence without objection. The justice holding the circuit nonsuited the plaintiff, on the ground that the action could not be sustained in the plaintiff's name, on the subscription, without an assignment thereof from the committee originally appointed by the conference. In this, I think, the justice erred. Ho formal direct assignment from the committee was necessary. By operation of law, as well as by the spirit and meaning of the subscription, the amount subscribed became due to the literary institution by its corporate name, to endow which was^ the express object and design of the subscription. The seminary, by the terms of the subscription, was to be under the supervision and control of *225the conference. It was incorporated by the advice and direction of the conference, and the trustees named in the charter are all the identical persons appointed by the conference in pursuance of the terms of the subscription. I entertain no doubt that the action is well brought in the name of the plaintiff. There were other grounds stated in the motion for nonsuit, but as the decision by the justice laid them all out of view, and was founded upon this alone, I do not deem it necessary to consider them. If it was, I think they could he answered and shown to be untenable, assuming any of them to have been well taken. Yet as the justice did not consider them, and placed his decision upon the one stated, if he had held either of the others good, non constat but further evidence would have been offered and received on the part of the plaintiff, and the objections thús obviated.

These views require an order setting aside the nonsuit and directing a new trial, with costs to abide the event.

Ordered accordingly.

Johnson, Campbell and Welles, Justices.]