Trustees of First Baptist Society in Syracuse v. Robinson. TRUSTEES OF FIRST BAPTIST SOCIETY IN SYRACUSE v. ROBINSON. An agreement to give towards building a church a lease of a house for three years, "which at present rent is $516," expressing no consideration, but appearing among the signatures to a subscription for that purpose which expressed a valid consideration, construed as a subscription for the amount of the rent. The reference to the lease does not make an agreement to demise the house, but merely designates the fund by which the subscription was measured, and from which the defendant expected to pay it. APPEAL from the Supreme Court. Action to recover the amount of a subscription for erecting a church. On the trial before a referee, the plaintiff proved the signature of the defendant to a subscription paper, which commences by reciting the disposition of the signers to contribute towards the building of a new church, and the receipt of one dollar, by each of them, from the plaintiff, in consideration of which each individually and severally agreed to pay the sum set opposite to his name in six installments, payable with interest at specified dates; with a provision that each subscriber who, upon the completion of the church, should purchase a pew, should be credited towards paying therefor with the amount paid upon his subscription. It was dated December 23, 1847, and the first installment of the subscriptions was payable in July suc ceeding. After the signatures of five persons were these words written across the paper and subscribed by the defendant, "I agree to give a lease of my house on Genesee street, which now rents for $172 a year for three years, towards building a new Baptist church in Syracuse, and will pay village tax and insurance; which at present rent, $516. "W. A. ROBINSON, Jr." Then followed the signatures of some sixty subscribers, for sums varying from $25 to $250 each. Trustees of First Baptist Society in Syracuse v. Robinson. The defendant objected to the reading in evidence any portion of the subscription paper except the words above quoted, immediately preceding the defendant's signature. The referee overruled the objection, and received the entire paper, under exception by the defendant. There was evidence that the defendant had been called upon for the first installment of his subscription in 1848, and again in 1851 or 1852, when the entire subscription was demanded. He declined to pay, upon the ground, among others, that he subscribed upon the condition the church should be erected upon a different site than that on which it was actually located. There was no demand of a lease nor any offer by the defendant to execute one. There was evidence on the part of the plaintiff tending to show that the defendant rented his house for a trifle more than $172 per annum. There was a motion for a nonsuit, upon grounds sufficiently appearing in the following opinion. It was denied, and the defendant excepted. Judgment was entered upon the referee's report in favor of the plaintiff for $516 and interest. The judgment having been affirmed at general term in the fifth district, the defendant appealed to this court. James Noxon, for the appellant. Samuel N. Holmes, for the respondent. WRIGHT, J. It is not claimed that if the defendant became a party, with others, to the agreement to contribute to the erec tion of the new church edifice of the plaintiffs, he can avoid payment of his subscription on the ground that such agreement was without consideration. There is a sufficient consideration expressed in the instrument to uphold the promise to pay of the subscribers to it. The position assumed is, that he never became a party with others to any agreement to contribute towards the erection of the church; but that he made a distinct and independent one for himself, which, though written on the subscription paper under the signatures of other subscribers, was not connected with nor formed any part of the Trustees of First Baptist Society in Syracuse . Robinson. instrument subscribed by the others; and that such independent agreement is void for want of consideration. This position, I think, is untenable. The paper signed by the defend. ant and some sixty other persons is to be regarded, as the subscribers thereto plainly intended it should be, as one instrument; and the words prefixed to the signature of the defendant are not to be construed as an independent agreement with him, written on the subscription paper but not intended by the parties to have any connection with or form any part of it. The surrounding circumstances indicate plainly that the defendant never contemplated making an agreement for himself, distinct from the other subscribers. He subscribed the agreement to contribute, in common with others, to build the church, indicating specially the amount and character of his subscription; and this is all the effect properly to be given to the words prefixed to his signature. It is said that the words import nothing more than an agreement to give a lease of the house in Genesee street to the society for three years, which is entirely at variance with the terms of the subscription providing for the payment of the amounts subscribed in six several installments. But it is not a fair construction of the language in which the subscription was made, to hold that the defendant intended thereby to constitute the society his tenant for three years, and that, by way of aiding to build the church, such society should control or occupy the premises. He obviously meant to give or appropriate the rent or income of the premises for three years, fixing such income at $516; and not that the premises should be demised to the society for it to sub-let at such rent as could be obtained for the same. The defendant, therefore, being a subscriber and party to the agreement to contribute towards building the church, the remaining inquiries are as to the amount and nature of his subscription, and whether a breach on his part was shown. The sum or amount annexed to his name, which he agreed to pay to the trustees according to the terms of the writing subscribed by him, was $516. The writing attached to his signature is in Trustees of First Baptist Society in Syracuse v. Robinson. effect this: "I will give the full rent or income of my house in Genesee street for three years, which at present rent is $516.". This was in substance a cash subscription to that amount, or at least to the amount of the full rent of the premises for three years. It was so intended by the defendant, or otherwise it would have been quite unnecessary to specify any sum as the rent or value of the premises. The intention of such specification was to fix the sum of the subscription of the defendant, or if not that, to show that the rent, and not a lease of the premises, was agreed to be contributed. Now, was a breach of the agreement shown? The plaintiffs built the church by and according to the terms of the subscription, upon the faith of the amount so subscribed by the defendant and others, and performed the conditions imposed on them by the contract. In 1848, before the building was commenced, the defendant was called on for the first installment of his subscription. He declined to pay. In 1851 or 1852, the subscription was again demanded. He refused absolutely to pay or comply with his agreement, denying any liability. He never offered to execute a lease, or place the plaintiffs in a position to receive the rent of the house in Genesee street, but such rent was received by himself. Regarding the subscription of the defendant to be the rent of the house for three years, and not a fixed sum of $516, as he collected and appropriated such rent, not towards building the church but to his own purposes, he is liable for the amount of it. After a denial of any liability, no further or more specific demand of the rent or subscription was necessary to put the defendant in default. The mistake in the corporate name of the plaintiffs in the pleading, describing themselves as "The Trustees of the First Baptist Society," instead of "The First Baptist Society," was the subject of amendment in the court below, and is no such error as to lead to a reversal of the judgment in this court. The judgment of the Supreme Court should be affirmed. COMSTOCK, Ch. J., did not sit in the case; all the other judges concurring, Judgment affirmed. 21 148 41 238 The vendor of land is responsible for material misrepresentations in respect to its location and qualities made by his agent without express authority and in the absence of any actual knowledge by either the agent or the principal whether the representations were true or false. 21 238 153 608 One who, without knowledge of its truth or falsity, makes a material misrepresentation, is guilty of fraud as much as if he knew it to be untrue. The fraud, it seems, is well stated in pleading as that of the principal, and if otherwise, and it appears at the trial to be that of an agent without any participation of his principal, the variance is the subject of amendment and will be disregarded upon appeal. APPEAL from the Supreme Court. Complaint that the defendant, for the purpose of effecting a sale to the plaintiff of certain lands in the States of Indiana and Illinois, made false and fraudulent representations in respect to their location, proximity to a river and railroad, their agricultural qualities, &c.; that the plaintiff, confiding in such representations, bought the land, paid for it and incurred expenses in removing his family to the same and bringing them back after he discovered that the representations were false and the lands comparatively worthless. Upon the trial at the Steuben circuit before Mr. Justice JOHNSON, it appeared that the sale of the lands was negotiated by one Davis, an agent of the defendant; that neither the defendant nor Davis had any personal knowledge in respect to the lands, but that the representations made by the latter were but a repetition of statements made to him by a brother of the defendant who had formerly owned the lands, and who made such statements from information derived by him from persons residing in the States of Indiana and Illinois, and whom he had employed as agents for the payment of taxes. The statement was made in general terms, without referring to any other per son as authority for its truth. The defendant had never been in the vicinity of the land sold by Davis in his behalf. The defendant's brother had, several years before, been upon lands |