Wayne & Ontario Collegiate Institute v. Greenwood , 40 Barb. 72 ( 1863 )

By the Court, Welles, J.

The principal questions involved in this case, it seems to me, have been decided already in the case of this plaintiff v. Smith, (36 Barb. 577,.) That was an action to recover the amount of several calls upon the amount subcribed on the same or a similar subscription paper as that upon which the defendant in this action subscribed, and on which he is claimed to be liable in this action. There is one question, however, now raised and argued in the present case, which does not appear to have been considered by the court in the case against Smith, although the facts out of which it arises are common to both cases.

The subscription paper which bears date May 23, 1855, provides that the moneys subscribed “ shall be paid to the treasurer of a board of trustees which may be elected by the Wayne County Baptist Association at a convention then called to meet at Marion on Wednesday the 30th day of the then present month,” &c.

The case shows that the convention met at the time and place stated but did not then and there choose such trustees, but adjourned to meet at Palmyra on the 16th day of June following. That said, convention met at Palmyra on the last mentioned day, pursuant to said adjournment, but no choice of trustees was then made. That the same convention adjourned from Palmyra to meet at Macedon on the 30th of the same month of June. That they met on that day at Macedon, pursuant to the last mentioned adjournment, and then and there chose a board of trustees, who were the same persons afterwards incorporated by the regents of the university, and who are the same persons named in the charter as the first board of trustees of the plaintiff, and acted as such trustees from that time. It is now objected on the part of the defendant, that the trustees, to whose treasurer the payment was to be made, as contemplated by the subscription paper, were those to be chosen by the convention appointed to meet at Marion on the 30th of July. And that as no trustees were then and there chosen, the obligation of the defendant became inoperative and at an end, and no longer binding upon him. To this, however, I cannot assent. In the first, place, the contract was in fact between the defendant and the board of trustees thereafter to be created, who were to be elected by the Wayne County Baptist Association at a convention then called to meet at Marion. The convention met at Marion on the day designated in the subscription paper. The same convention elected the trustees—not at that time or place, but at another place, on a subsequent day to which the convention which met at Macedón had been adjourned. This, in my opinion, was a substantial compliance in that respect with the stipulation of the subscription, which had reference to a body of men called to meet at a given time and place. The particular day and place when and where the election of trustees should take place was not the material thing, provided it was done by the body agreed upon. The view of the defendant’s counsel would exclude the pówer of the convention to proceed to the election of trustees on any day after the 30th of June, even though the adjournment was from Saturday until Monday. This strictness of construction, I think, should not prevail.

[Monroe General Term, September 7, 1863.

I believe the other questions now raised were disposed of in the case reférred to, against the defendant. It follows that the judgment should be reversed, the nonsuit be set aside, and a new trial ordered.

Ordered accordingly.

E. Danoin Smith, Johnson and Welles, Justices.]