person within the new and enlightened definition of the term and that the cause appears to be meritorious, counsel will be assigned to conduct the case. Such assigned counsel shall receive a reasonable fee for his services. Under this proposed statute all fees and compensation shall be payable from a revolving poor litigants' fund which shall be created by public appropriation and which may be augmented by gifts as well as from fees from successful litigations conducted for poor litigants.

It is not the idea of this proposal to supplant the legal aid societies. Wherever legal aid societies exist they will be utilized as supplying the most appropriate and best equipped counsel that can be assigned. The significance of the proposal is that there is provided someone in authority responsible for seeing that people too poor to pay may have their day in court as a necessary function of government in the administration of justice.

The awakening of interest in the movement to bring justice more nearly within reach of the poor is encouraging. In assuming the leadership, the Bar recognizes its responsibility. Nowhere, however, is the opportunity so great for developing interest in the subject as in the law schools. If the young lawyer entering practice shall be given a clear conception of the difficulties to be overcome, the measures proposed and the end to be sought, he will be of invaluable assistance in this movement which is gaining yearly momentum.

14The present rule in N. Y. is that a poor person within the meaning of the statute "shall be a person who is not worth $100.00 besides the wearing apparel and furniture necessary for himself and his family and the subject matter of the action." (N. Y. Civ. Prac. Act. § 199.) Under the proposed "Poor Litigants' Statute" the definition of a "poor litigant" is "any applicant found by the public counsellor not to be worth a sum exceeding $500.00 exclusive of his rights in respect of such cause and also exclusive of property exempt from execution and from being reached or applied upon a creditor's bill; and not to be receiving or reasonably to be expected to receive an income averaging more than $25.00 per week.'

The Problem of Consideration In

Charitable Subscriptions

T. C. BILLIG*

Section 88 of the tentative Restatement No. 2 of the Law of Contracts reads:

"A promise which the promisor should reasonably expect to induce action or forbearance of a definite and substantial character on the part of the promisee and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise."

In the Commentaries on Contracts, tentative Restatement No. 2, at page 16, Professor Williston discusses Section 88 in its application to charitable subscriptions:

"Charitable subscriptions are generally enforced in the United States at least after action in reliance upon them has been taken. Cases are collected in Treatise, section 116 . . . . It is of course possible to have a subscription made for technical consideration, and thereby avoid any difficulty; but in fact, in most at least of the cases cited in Section 116 the subscriptions were not made for consideration but were intended as gifts. Though various arguments are put forward to support the liability of the subscriber, by far the most common line of argument is that where acts have been done in reliance on the subscription the acts so done furnish consideration. It is obvious, however, that such acts are not consideration in any true sense; they are acts done in justifiable reliance on the promise. There is what I have called in the Treatise 'promissory estoppel'-reliance not on a statement of fact, but on a promise. Occasionally the court has frankly stated this . . .”

Professor Williston then asks some thought-provoking questions: "If this doctrine is to be accepted, what are the limits to be placed upon it? Is a promise by one man, of money to build a church, to be held invalid after work has been begun in reliance upon it, though the promise of two men, each to give a specified sum for the purpose, is binding under similar circumstances?

"If such a promise to a church is binding, is a promise by a father to his son, or several promises by a father and father-in-law to the young man, of a sum of money with which to build a house invalid when he has made similar commitments with architects and builders?"

These comments and questions raise once more the whole problem *Assistant Professor, Cornell Law School.

of consideration in the charitable subscription cases. As Professor Williston points out, such promises to charities1 usually are enforced, "at least after action in reliance upon them has been taken." But perhaps there is no other group of cases in the entire law of contracts which the student leaves with a feeling of greater dissatisfaction.2 The writer believes that one reason for this unfortunate` result is that the courts, in their desire to enforce charitable subscriptions, attempt to place the latter in the same legal pigeonhole with subscriptions for business purposes, without much regard for their respective factual similarity or dissimilarity. The subscription for a business purpose usually involves a set of facts to which the orthodox "benefit-detriment" rule of consideration can be applied without indulging in judicial contortions. The trouble starts when the court, wishing to reach a "just" result, applies the reasoning used in a business subscription case to a charitable subscription fact situation." The charitable subscription in question may range all the way from the loosely drawn promises of the earlier cases to the legally

3

A much quoted definition reads: "A charity in the legal sense may be more fully defined as a gift, to be applied consistently with existing laws, for the benefit of an indefinite number of persons, either by bringing their minds and hearts under the influence of education or religion, by relieving their bodies from disease, suffering or restraint, by assisting them to establish themselves in life, or by erecting or maintaining public buildings or works, or otherwise lessening the burden of government."-Gray J, in Jackson v. Phillips, 96 Mass. 539, 556 (1867).

2"An attempt to reconcile all the cases which have been adjudged, touching the validity of voluntary engagements to pay money for charitable, educational, religious or other public purposes, would be fruitless; for, while circumstantial differences in the cases will explain and satisfactorily account for some of the diversities in the decisions, it will be found that there is, to some extent, a want of harmony in the principles and rules applied as tests of validity to that class of undertakings"-Allen J, in Barnes v. Perine, 12 N. Y., 18, 23, (1854).

The following is a typical definition of the term "subscription contract", which is used as a sort of blanket under which to tuck both types of fact situation: "A subscription contract is a legal obligation to make a payment in money or its equivalent in furtherance of a charitable, business or other undertaking.' 37 Cyc. 482.

41 WILLISTON, CONTRACTS, (1920) § 117 and cases cited.

"This quotation illustrates the usual approach: "But while it is well established that voluntary subscriptions are, when considered alone and unsupported by any other element, unenforceable, the necessary consideration to support such contracts is usually found in the expenditure of money, the performance of work, or the incurring of some liability by the promisee on the faith of the subscription.” I ELLIOTT, CONTRACTS (1913) § 228.

"In Trustees of Farmington Academy v. Allen, 14 Mass. 171, (1817) the action was brought upon the following paper: "Town of Farmington, county of Kennebeck, December 1805. Whereas the establishment of an academy in this part of the county for instruction in the different branches of useful learning is rendered necessary by our distance from any literary institution of this kind, and will meet with the approbation of all friends to the public good, by affording the means of diffusing knowledge to the rising generation; and whereas the raising of a suitable fund by the voluntary donations of individuals is requisite, before the necessary assistance of the legislature can be obtained;-we, the subscribers, hereby engage to be accountable for the payment of the respective sums set

"bullet proof" subscription blank used in present day drives for endowment funds." But the approach of the American court in either instance often varies little. The court must find some consideration for the subscriber's promise in order to saddle contractual liability upon him. This fore-ordained result is reached in one of several ways. And a study of the cases reveals that some courts are not always clear in their opinions as to which theory they are applying. Hence, numerous decisions embody a jumble of the various methods of finding consideration hereafter discussed.

I

The court may regard the charitable subscription as the offer of a unilateral contract. Under this view, as soon as the promisee charity, relying on the subscription, does anything towards carrying out the project for which the subscription was given, or "spends money,' or "incurs liability" in that connection, contractual legal relations arise. If there is an express request by the subscriber for the act in against our respective names, as a fund for and to be applied to the purpose aforesaid; to be payable to such persons as shall or may be by the legislature appointed trustees to any academy situated near the centre of the town of Farmington, as may be granted by virtue of the funds hereby raised; and also to pay the interest yearly on such respective sums, to commence from the time of the grant of such academy."

9

Subscribers to the fund for building the Cathedral of Learning at the University of Pittsburgh signed a blank reading: "In consideration of the University of Pittsburgh obtaining subscriptions from others, I promise to pay to the University of Pittsburgh, or order, to enable the University to inaugurate its building program, the sum of ... dollars as follows: ... If not paid in full, balance payable in... equal installments beginning June 30, 1925. Name ... (Seal), Street, City... Make checks payable to the order of R. B. Mellon, Treasurer, 314 Smithfield St., Pittsburgh, Pennsylvania."

....

In the Matter of Conger, 113 Misc. 129, 184 N. Y. Supp. 84 (1920) recovery was allowed on the following subscription signed by the decedent: "Centenary Estate Pledge for the Board of Home Missions and Church Extension and for the Board of Foreign Missions of the Methodist Episcopal Church. (Manly W. Conger) March 20, 1919. In consideration of my interest in Christian Missions, and on condition that the above named boards secure other subscriptions for this cause, and for value received, I hereby promise and agree to pay to the Board of Home Missions and Church Extension and the Board of Foreign Missions of the Methodist Episcopal Church, at 150 Fifth Ave., New York City, the sum of One Thousand Dollars ($1,000.00) which shall become due one day after my death, payable out of my estate, interest at the rate of ... per annum from date.'

See notes: (1925) 38 A. L. R. 868; (1914) 48 L. R. A. (n. s.) 784; (1922) 8 CORNELL LAW QUARTERLY 57; (1925) 23 MICH. L. REV. 910; (1914) 62 U. Pa. L. REV. 296 (1925); 3 Wis. L. REV. 275; (1924) 34 YALE L. J. 99.

Stone v. Prescott Special School Dist. 119 Ark. 553, 178 S. W. 399 (1915); Y. M. C. A. v. Estill, 140 Ga. 291, 78 S. E. 1075, 48 L. R. A. (n. s.) 783, Ann. Cas. 1914 D. 136 (1913); Miller v. Oglethorpe University, 24 Ga. App. 388, 100 S. E. 784 (1919); Scott v. Triggs, 76 Ind. App. 69, 131 N. E. 415 (1921); Brokaw v. McElroy, 162 Iowa 288, 143 N. W. 1087, 50 L. R. A. (n. s.) 835 (1913); Erdman v. Trustees of Eutaw M. P. Church, 129 Md. 595, 99 Atl. 793 (1917); Cottage St. Church v. Kendall, 121 Mass., 528 (1877); In re Stack's Est., 164 Minn. 57, 204 N. W. 546 (1925); Irwin v. Lombard Univ., 56 Ohio St. 9, 46 Ń. E. 63, 36 L. R. Á. 239, 60 Am. St. 727 (1897); Univ. of Penn'a's Trustees v. Coxe's

question the court is faced with less difficulty.10 But such a fact situation is the exception, for generally the request must be implied." This theory of regarding the act of the promisee as accepting the offer of the promisor, thereby forming a binding contract, seems to be the single approach of the New York courts, 12 although the cases say that, unless at least an implied request for the act can be found, the doing of the act itself is not enough. However, in the more recent decisions from that jurisdiction the court is most ingenious in finding the necessary implication. In the much cited Keuka College v. Ray, 13 the Court of Appeals lays down the prevailing New York rule:

Exrs., 277 Pa. 512, 121 Atl. 314 (1923); Furman Univ. v. Waller, 124 S. C. 68, 117 S. E. 356, 33 A. L. R. 615 (1923); Eastern States Agr. and Ind. League v. Vail's Est. 97 Vt. 495, 124 Atl. 568 (1924); Y. M. C. A. v. Olds Co. 84 Wash. 630, 147 Pac. 406, L. R. A. 1917 F. 1132 (1915); Y. M. C. A. v. Rankin, 22 B. C. 588, 27 D. L. R. 417 (1916); Y. M. C. A. v. Wood, 22 B. C. 588, 27 D. L. R. 420 (1916) Sargent v. Nicholson, 26 Man. L. R. 53, 25 D. L. R. 638 (1915).

10New Jersey Orthopaedic Hosp. v. Wright, 95 N. J. L. 462, 113 Atl. 144 (1921). 11See (1925) 38 A.L.R. supra note 8, at 887. "Yet while the courts rather than violate an old and established rule of law hold that a naked promise to pay money for a public object cannot be enforced for the want of consideration, they have also decided with great unanimity that if the promise itself, or any other promise upon which it is founded, contains a request, or that which by any fair construction can be construed as a request to the trustees or others representing the institution for whose benefit the promise is made, to do any act, or to incur any expense, or to undergo any inconvenience, and such institution does the act, or incurs the expense, or submits to the inconvenience, this request and performance on behalf of the institution is a sufficient consideration to support the promise"-Watson J, in Philomath College v. Hartless, 6 Or. 158, 164 (1876). 12The attempt of Chancellor Walworth in Stewart v. The Trustees of Hamilton College, 2 Denio, 403, (N. Y. 1845) to inject into the law of New York the rule that the promises of the various subscribers shall be consideration for each other seems to have met with immediate disfavor. "It has sometimes been supposed that when several persons promise to contribute to a common object, desired by all, the promise of each may be good consideration for the promise of others, and this although the object in view is one in which the promisors have no pecuniary or legal interest, and the performance of the promise by one of the promisors would not in a legal sense be beneficial to the others. This seems to have been the view of the chancellor as expressed in Hamilton College v. Stewart when it was before the Court of Errors, 2 Den. 417 . . .But the doctrine of the chancellor, as we understand, was overruled when the Hamilton College case came before this court, I N. Y. 581. . . .The doctrine seems to us unsound in principle.”— Andrews J., in Presbyterian Church of Albany v. Cooper, 112 N. Y. 517, 521, 20 N. E. 352, 3 L. R. A. 468, 8 Am. St. Rep. 767 (1889).

13167 N. Y. 96, 100, 60 N. E. 325 (1901). It is difficult to determine where the courts of New York stood on the question prior to the Keuka College case. See 8 CORNELL LAW QUARTERLY supra note 8. In Trustees of Hamilton College v. Stewart, I N. Y. 581, (1848) the subscribers signed the subscription paper on condition "that the moneys collected on it shall be permanently invested in a productive fund, the interest of which shall be applied to the payment of the salaries of the officers," and, on condition that two attorneys named therein should certify that responsible subscriptions totalling $50,000 had been obtained by a certain date. The plaintiff college alleged performance of the conditions precedent and showed that professors had been hired on the strength of the fund "pledged". The Supreme Court found for the plaintiff. The Court of Errors reversed, largely on the grounds that bona fide subscriptions for $50,000 had not been raised by the date named. (2 Denio 403). Subsequently the Court of Appeals