1 Worcester Med. Inst. v. Bigelow, 6 Gray, 498. See also North Ecclesiastical Society v. Matson, 36 Conn. 26 (1869); Berkeley Divinity School v. Jarvis, 32 Conn. 412; McDonald v. Gray, 11 Iowa, 508; Wayne, etc, Institute v. Smith, 36 Barb. 576; Franklin College v. Hurlburt, 28 Ind. 344; Graff v. Pittsburg, etc, Railroad Co., 31 Penn. St. 489.
2 Curry v. Rogers, 1 Fost. 247. In Farmington Academy v. Allen, 14 Mass. 172, Parker, C. J., says: " According to the decision in the case of The Trustees of Limerick Academy v. Davis [11 Mass. 113], cited in the present argument, this action cannot be supported upon the original promise, of which the subscription paper is the evidence; for it appears by that decision that a promise of this sort, made to no particular person, and having only a public benefit for its consideration, is no more binding in law than it is upon the consciences of men who are base enough to refuse to perform them. That case was well decided." But in the case from which the quotation is made, the subscriber, after the incorporation of the plaintiffs, had, upon request, furnished some material towards the construction of the building; and he was held liable on this ground for money laid out by them to his use on the completion of the building.
3 See Mirick v. French, 2 Gray, 420.
4 Curry v. Rogers, 1 Fost. 255. In this case the court say: " A diffipromises to individuals are void; unless others are induced thereby to advance money or part with property, or to do culty arises here, which, upon the facts presented, cannot be obviated. There is no privity of contract between the parties to the suit, and nothing shown which can place them in the relation of debtor and creditor. If the defendant can be holden at all, in this action, it must be upon the general counts. The evidence cannot sustain the special count upon the subscription paper. The contract by that paper was with the cosigners, and not with the plaintiffs. That others signed the paper with him is a sufficient consideration to raise a promise to pay according to the special agreement; and that consideration may be so transferred by the action of the defendant as to bind him to others for money paid. Unless some action were taken by the defendant, binding upon him, whereby he became obligated to others for the purposes of carrying out the designs of the subscribers to the paper, he could be holden to the subscribers only. This contract was with them; not with others. This committee, the plaintiffs in this action, were appointed at a meeting of some of the subscribers. There is no provision in the paper for any such meeting; but upon those who saw fit to attend it, and who took part in its proceedings, the appointment of the committee may be binding. It may be regarded as a subsequent arrangement and agreement among themselves, to abide by and carry out their doings. Upon such, the plaintiffs should have a good claim. They were, in fact, employed by them to proceed and erect the building; and we can discover no good reason why they should not have a legal cause of action, upon a count for money paid, for all sums properly expended in furtherance of the object and designs of the donors. Upon those, also, who did not attend the meeting at which the plaintiffs were appointed, but who subsequently assented to its doings, and agreed to the expenditure of the money by the committee, the plaintiffs should have a claim. Upon those, too, who recognized the proceedings of the plaintiffs, and ratified their doings, there may likewise be a cause of action. But this defendant stands not in the light of either. He was not notified to attend the meeting at which the plaintiffs were appointed. He neither attended that nor any other meeting; nor did he consent to, or ratify its doings, or in any way recognize his liability thereafter. We can discover no privity of contract whatever between him and the building committee. There were no dealings or transactions of any kind between them. His contract, if any, was with his cosigners. George v. Harris, 4 N. H. 533. And, upon the facts presented here, it is they alone who can maintain an action, if it can be maintained at all.
"The cases cited in the argument are based upon a different state of facts, and do not sustain the plaintiffs in this suit. Homes v. Dana, 12 Mass. 190, was a subscription to a newspaper establishment; and the plaintiff's intestate, Larkin, was, by the express terms of the subscription, made the trustee to receive and appropriate the money. Trustees of Farmington Academy v. Allen, 14 Mass. 172, was a subscription to raise funds for the other acts to their own injury, and then they will be obligatory on the promisor, in order to avoid a fraud upon third persons.1 This exception, however, does not apply to every gratuitous promise which has afforded an inducement to others to make similar promises, but only to those of persons who, relying upon the performance of such promise, have, in consequence thereof, contracted liabilities and engagements, or made advances, which a breach of the original promise would enlarge or render more burdensome.2 Thus, the subscription of a establishment of an academy, 'payable to such persons as shall, or may be by the legislature appointed trustees.' The plaintiffs were subsequently made such trustees by the legislature, as was provided in the paper. Bryant v. Goodnow, 5 Pick. 228, was a subscription to establish a line of stages. The paper provided that there should be a meeting of the stockholders, for the purpose of making such arrangements, obligations, and officers, as might be necessary to carry into effect the objects proposed. A meeting was accordingly held, and the plaintiff, Bryant, chosen agent of the company, and authorized to expend money to purchase horses, coaches, and other necessary things connected with the business of the company. In each of these cases, there was something upon which to base either an express or implied promise from the defendants to the plaintiffs. In the first, Larkin was the person to whom the money was to be paid by the terms of the paper; and in the second and third, the way was pointed out in the papers, by which the plaintiffs should become the payees of the subscribers. In the last case it is also indirectly held, that the defendant was entitled to notice of the meeting at which the agent was appointed; and so far, that case is an authority for the defendant here; for no notice whatever, of the meeting at which the plaintiffs were appointed, was ever brought home to this defendant.