Majority
p. 89M‘Auley against Billenger and others.
Headnote
IN ERROR, on certiorari to a Justice’s Court.M., with others, signed an instrument by which he engaged to pay a sum, subscribed by him to B., and others, a committee appointed by the members of a church, to obtain subscriptions, and contract for the repairs of the church; and the instrument contained a proviso, " that no person should be obliged to pay he subscribed, cfontSsumS«ms raised to repair Thecommittee contract^witb a person to make the repairs, for a rSm^engaged t0 talte tha being about sum^i^pay^ m?nt’ ,and l.° due by a sale wiiiciThe^was ^ke^Held that this was a compliance with the condition of the subscriptions, and that was liable to pay the sum subscribed by him.
B., and the other defendants in error, sued M‘Auley before the Justice, to recover the first instalment of a sum sub- ’ scribed by him for the repairs of a church. The defendants in error, at a meeting held at Union Church, in Danube, were appointed a committee to receive subscriptions, and to contract for the repairs of that church, in the manner specified m a written paper, the subscribers tó which pro-raised to pay to the committee, or either of them, the sums by them respectively subscribed, in four equal instalments, the first of which was to be paid when the subscription commenced. The subscription paper concluded, as follows: " Provided, nevertheless, that no person shall be obliged to pay the sum which he subscribes, unless a sufficient sum can be raised to repair said church.” The plaintiff in error subscribed 25 dollars; the paper was, also, signed by sixteen other persons, and the whole amount subscribed was about 600 dollars. The defendants in error, by an agreement under seal, contracted with a person to make the repairs for 1200 dollars; and the contractor agreed to receive the subscription paper, in part payment, and to collect the sums subscribed, at his own risk, and without recourse to the defendants in error. And it was further agreed, that the contractor, m order to raise the residue of the money, was to have the privilege of selling a sufficient number of the pews for that purpose. The repairs having been commenced, the plaintiff in error was requested to pay the first instalment of the sum subscribed by him, but he refused, and the suit below, was brought to recover that amount. The Justice gave judgment against the plaintiff in error, for six dollars and twenty-five cents.
The plaintiff in error voluntarily entered
into a contract, by which he engagep to pay to the defendants in error, twenty-five dollars, for the purpose, and in the
p. 90
manner specified in the instrument to which he subscribed his name. The consideration for his promise was the repairing of tiie church. By signing the subscription, he sanctioned the acts of the meeting in resolving to make the repairs, and in the appointment of the committee for that purpose; and he, moreover, recognised the authority of the committee to receive the subscription money, and to contract "for the repairs. The only question, then, is, whether the condition, on which the sum subscribed was to be paid, has been fulfilled on the part of the defendants.in error. They contracted for the repairs, at a specified sum; and the person with whom they contracted, covenanted, on his part, to receive the balance of that sum, over and above the" amount subscribed, in the proceeds of the sale of pews, which he was authorized to make. The payment of the whole sum was provided, and could be raised, according to the meaning of the condition of the instrument subscribed, without having recourse to the defendants in error. The terms of subscription were, therefore, complied with; and the defendant below was liable to pay the instalment for which judgment was rendered against him in the Court below.
.Judgment affirmed.