President of Middlebury College v. Adms. of Freedom Loomis

This case, and the other connected with it, and the principles embraced, are so important, and there being two only of the members of the court who can act in deciding them, we are disposed to place our decision on grounds in which we are perfectly agreed. Indeed, we find ourselves, disagreed in nothing but the mode of arriving at the same conclusion upon one of the points to be decided.

The claim of the plaintiffs rests on the validity of the contract contained in the subscription-paper read in evidence on the trial, in connection with the proceedings of the corporation with regard to the same. And it is not disputed that Freedom, Loomis, the intestate, actually signed his name to that paper.

As the defendant obtained- a verdict-in this cause, those points decided in favor of the plaintiffs by the County Court, are not necessarily raised on these exceptions, yet the counsel for the parties, as a matter of convenience, have applied their arguments in this cause to all those points which, in any event, might be common to the two now to be decided. This was not improper at all, for it would be useless to grant the plaintiffs a new trial, if, as the defendant contends, they have no cause of action upon legal grounds apparent upon the record. But as both causes have been argued,and are now to be decided, we shall dispose ofthe several points where they most technically belong.

The exceptions taken by the plaintiffs to the admission of testimony offered by the defendant in this action, lead ns to contemplate the nature of the subscription, and some things urged in reference to the consideration upon which it was formed. The subscription commences with a ,recital of the good feelings of the subscribers towards the College, their conviction of its want'Of funds to promote an object of its importance, and then contains a promise that the subscribers will, for the purpose of aiding to establish a sufficient permanent fund, pay to the plaintiffs the sums, &c. And, further, for the consideration aforesaid, they promise to pay the annual interest on the same till the whole is paid. It then recites the conditions upon which only it was to be of binding force; one of which conditions was, that not less than twenty thousand *210dollars should be subscribed to said permanent fund. Now, • whether this contract was obtained fairly or not; whether it was obtained by holding out flattering inducements of things never to be realized; whether fictitious subscriptions were obtained to be used as allurements to the generous and unwary ; these were proper subjects of inquiry, as they would be in case of any contract. The defendants complain that they were decoyed by ma-noeuvres bearing these characters} and the'testimony offered by them was correctly admitted.

The plaintiffs except to the charge of the court in relation to the declarations of President Davis while soliciting these subscriptions. So far as the. jury should believe his declarations were but the expressions of his honest opinion at the time, the charge is favorable to the plaintiffs: But so far as his declarations were calculated and intended to deceive subscribers, and were 'made contrary to his own opinion and belief, the charge was, as it should be, against the plaintiffs. The plaintiffs have brought, and are prosecuting this action in affirmance of President Davis’ a"gency, and, while they do so at all, they must affirm it in toto. If they would have the benefit of his contracts they must take them subject to such incumbrances as his conduct appended to those contracts, while he was making them. And the jury were properly instructed, that, if the inducements held out by President Davis, to obtain subscribers, had no foundation in fact¡ and that known or believed by Dr. Davis at the time, the whole was tinctured withjfi-aMof,'and the jury might find-for the defendant.

The charge of the court,with regard to the powers of Mr. Chip-man to discharge the Shoreham subscribers, was in favor of the plaintiffs; bat we see no reason why his powers were not coextensive with his acts. ■ The vote of the corporation gives him “ full “powers to close the subscriptions to the permanent fund in such “ manner as he deems for the best interest of the College.” No language they could use would convey any more power to discharge without receiving pay than was used. They must have intended he should learn their circumstances in each particular case, and act upon those circumstances as prudence should dictate. If he found the subscriber of doubtful responsibility, or the claim itself *211doubtful, he might obtain the best settlement he could, and secure what he could. If he found the claim a nullity,he might discharge without payment. If instructions to this effect had been given to the jury, they would have been sanctioned by this court.

Upon the point of the stipulations said to be entered into by Dr. Davis, while soliciting subscriptions, the Court instructed the Jury, that if they believed from the testimony that he made such stipulations, which were afterwards executed with any of the subscribers, that they should be allowed to take off their names, or be otherwise discharged without payment, and that this was done for the purpose of inducing others from a view of these subscriptions the more readily or liberally to.subscibe, and that if any part of the entire subscription returned to the Corporation was obtained by means of these apparent but unreal subscriptions, they must re-gard the whole subscription as affected with the fraud, and find for the defendants. '

It would not be easy to excite a doubt upon the correctness of this part of the charge, if it applied only to such subscriptions as were obtained after those which were fictitious, nor, if deducting those that were fictitious and those obtained'afterwards, less than twenty thousand dollars remained. There is more difficulty as the case stands ; for the charge makes the unreal subscriptions and any one obtained afterwards, and by their means, affect and defeat those before obtained. This instruction assumes the position that; though the subscriptions are several in one sense, so that neither subscriber was holden for any other, yet, in another sense, it was entire and must stand or fall together 5 and that the object was to raise a permanent fund, which, when raised, consisted of the whole sum subscribed and returned to the Corporation, and that each subscriber had a right that none of this should fail through.any fraudulent management of those by whom the subscription was obtained. We have not been free from difficulty upon this point, but, upon mature consideration, we are disposed to support the verdict. Upon reading the subscription, and learning the history of its circulation, and noticing the magnitude of the object'proposed, it was the reasonable expectation of the first subscribers that the paper would he presented, in a fair and honorr *212able manner, to the people of prop-* perty within that territory, whose inhabitants might well be supposed to wish the prosperity of the College, and that the whole would be returned to the corporation to form that permanent' fund which it was hoped would relieve the College from future pecuniary wants. And they had an interest that this fund' should be so fairly obtained that the College might have the friendship and patronage of the surrounding population in every other point of view, as well as their pecuniary patronage. Furthermore, one condition of the subscription is, that in an event therein described, the last subscriptions even to any amount, shall operate to relievé the first subscribers from their subscriptions, in whole 'or in part,as the result should prove. There was a sum in contemplation that would answer all die exigencies of the Corporation, and all beyond that was merely a relief to those who subscribed tire amount thus contemplated to be raised. They, there--, fore, had a greater interest in the after subscriptions than the', corporation themselves. It is right, therefore, that any defeat of die later subscriptions,through any fraudulent management of die agents of the Corporation>should render the whole uncollectable.

The Judgment of the County Courtis affirmed.