Trustees of the Parsonage Fund in Fryeburg v. Ripley , 6 Me. 442 ( 1830 )

Mellen C. J.

delivered the opinion of the Court in Cumberland, at the adjournment of May term in August following.

This case presents two questions for our decision. 1. Whether the note declared on was given upon a good and legal consideration; and if it was, 2. Whether there has been a failure of consideration, whereby the defendant has become discharged from all liability.

As to the first point. The cases cited by the defendant’s counsel, have undergone a revision, at least many of them, in the case of Trustees of Amherst Academy v. Cowls, and that of Boutelle v. Cowdin, has been explained in the case of Pembroke v. Stetson. According to these later decisions, the consideration of the note in question can be liable to no objection ; the promise is binding in law, as well as upon the principles of morality. The professed object of those who subscribed to the parsonage fund was to avoid those difficulties and divisions which arise in supporting a minister by parish taxes, and to preserve the interesting connexion between a pastor and his church and people. The subscribers have expressed, in plain terms, the conditions on which their donations are made; and by these, require of the trustees the performance of several duties, attended with labor and some expense. The acceptance of the donations on these conditions, amounts to an undertaking on the part of the trustees to perform this labor, and incur the necessary expense of recording the list of donations, and the directions of the donors, and furnishing copies as required by them. This acceptance and undertaking of the trustees at the request of the donors, form a good consideration for the note in question. It is a good consideration and sufficient to support a contract, if the party in whose favor the contract is made, forego some advantage, incur some expense, suffer loss, or perform duties in consequence of his placing confidence in the undertaking of the other party. Sumner v. Williams, 8 Mass. 200; Lent v. Padelford, 10 Mass. 230; Foster v. Fuller, 6 Mass. 58; Davenport v. Mason, 15 Mass. 85. But in addition to this, the donation and promise of payment, were for the benefit of each donor, by securing him from taxation for parochial purposes; or in case of taxation, by the agreement of the trustees to appropriate so much of the annual interest as would pay his parish tax raised for the support of preaching. The donations were made to an incorporated body capable of receiving them. The defendant made his note for the amount of his donation; to create a fund for valuable purposes was the object of all the subscribers; and the purposes were accomplished. We are disposed to adopt the ideas of the court in the case of Pembroke v. Stetson, when speaking of the do-.cisión in Boutelle v. Cowdin. “We cannot believe it was intended by the court to lay down the proposition, that the contributors to a fund for a valuable object, being indulged with credit, instead of making immediate payment, their promise being made to a party capable of receiving it, and compellable by law to apply the proceeds of the fund according to the original intent of the contributors, is void ' for want of consideration.” We would add that we cannot believe .such a proposition to be law; we deem it equally binding, where the promisees are compellable by the terms of their own express or implied agreement to apply the proceeds of the fund as above mentioned. The defendant’s first objection therefore fails.

But he contends that upon the facts of the case, he is relieved from all liability to pay the contested portion of the note declared on. If the defence is a good one, it must be so either on the ground that the terms and conditions on which he subscribed the $100 in question have been violated without his consent, and to his serious injury; or else that by virtue of our constitutional and statutory provisions he is discharged from such liability.

' The terms and conditions on which the defendant and others subscribed to the fund in question are in writing, and compose a part of the contract created by such subscription ; of course no. parol proof is admissible to shew their extent or meaning, or any expectations on the part of the defendant, operating as motives at the time of signing the subscription paper, and making the contract .it contains. Now, upon examination of this paper, we find that the only terms and con-ditio'ns imposed by the subscribers to the fund were, that the interest should be “ appropriated for the support of a learned, pious, faithful gospel minister of the congregational order, settled and ordained over the church and society in said parish,” except what relates to the place of worship. Nothing is found in it which has any relation to the articles of faith and covenant then approved and in use in the church, or as to their continuance or alteration. It is not pretended that Mr. Hurd was not, at the time of subscription, and ever since has been, a learned, pious and faithful gospel minister, of the congre-tional order ; but the complaint of the defendant is that since he was ordained, the articles of faith have been altered, and that his preaching is in conformity to those articles, and to the great annoyance of the defendant and his family. On view of these facts, we cannot perceive in what respect any of the terms or conditions of the defendant’s agreement have been violated or disregarded ; and therefore on this point the defence must fail. Other conditions might have been inserted, upon a noncoinpliance with which the donation should be void and irrecoverable; or if paid, might be reclaimed and recovered back again; but it is not our province to make contracts for the parties, but to give effect to such as they have made.

The next inquiry is whether other circumstances, independent of the terms and conditions of the contract, furnish a valid defence. This, we think, is easily answered. Though by our statute, a man may, by a compliance with its provisions, relieve himself from the obligation into which a corporation, of which he was a member, entered ; that is, may leave one parish and join or not join another, and thus free himself from his corporate contract; yet this principle is applicable only in such cases. But iu the case before us there is no corporate contract; each subscriber has entered into a personal contract, binding him in his individual capacity. Having done this, he cannot absolve himself from his obligation, nor can the facts of which the defendant complains amount to an absolution. It is true the articles of faith have in some particulars been changed, and the doctrines inculcated by Mr. Hurd are different from such as were anticipated at the time of his settlement. Still, whatever effect such a change of sentiments, articles of faith, and inculcated doctrines might have upon a contract entered into between a minister and a parish, in its corporate capacity, it certainly has no influence upon an express personal contract. The opinions and ruling of the judge were correct, and there must be

Judgment on the verdict.