I cannot concur in the prevailing opinion, either as to its law or its facts. If the conveyance from the plaintiff to the defendant was made upon an understanding or agreement whereby, an implied trust arose in favor of the plaintiff, notwithstanding the fact that upon the face of the deed making the conveyance it appeared to have been entirely an absolute one, then it seems to be the settled law, not that the failure upon the part of the grantee to comply with the terms of the implied trust justifies the court in setting aside the conveyance, but that it imposes upon it the duty of enforcing the trust. (Associate Alumni v. Theological Seminary, 163 N. Y. 417.)
" The fact that a trustee has mistaken his rights under the deed out of ’ which the trust arises has never before been held to invalidate the trust; but the court must impose upon the trustee the specific performance of the trust, which, under the authority of the case last cited, may be coupled with a. provision that, in case of a failure to comply with the conditions, the fund be paid over or surrendered either into court or to trustees appointed by the court. I cannot find that it has ever before been held that, where a party has mistaken his rights under a contract by claiming too much, he thereby loses all claim to protection as to rights which were admittedly conferred upon him by the contract.
It further seems to me that the weight of evidence is decidedly against the proposition which has been urged by the plaintiff, namely, that the medical committee of the council of the defendant, with the assistance of the faculty of the medical department, was to have absolute control of the affairs of such medical department. It seems to me that an examination of the evidence in this case shows *65that this is a mere deduction which has been arrived at by the various witnesses, who testified substantially to that effect. Although this claim is made by the witnesses upon the part of the plaintiff, it is confessedly by their own evidence untrue. The medical committee of the council of the defendant, assisted by the medical faculty, were not to have absolute control. It is admitted that the defendant was to be financially responsible for the. medical department. It is admitted that the council of the defendant had the power to fix the salaries of the occupants of the various chairs in the medical department. Now, if the council had this control over so important a branch of the medical department as the fixing of the salaries of its professors and were to be permanently responsible for the medical department, what becomes of this claim of the absolute control of the medical department being vested in the committee of the council of the defendant assisted by the faculty of the medical department ?
Furthermore, there is not a writing or a communication from any of the witnesses upon the part of the plaintiff that does not contradict his position upon the witness stand.' Let us take particularly the witness Dimock, who was a member of a sub-committee of the council of the defendant, and who, it is alleged, made to the committee of the plaintiff the assurances and assertions in regard to the control of the business and affairs of the medical department. He swears that he assured those gentlemen that that control should be in a committee of the council which should be appointed at their suggestion and satisfactory to them. ■ He says that that was part and parcel of the arrangement which was entered into between the sub-committee of the council and the committee of the plaintiff. And yet, when he reports the action of his sub-committee to the council of the university, there is not one word said in regard to any such proposition. Upon the contrary, his report is that the council of the university were to have the unreserved control of the business and affairs of the medical department. There is not a suggestion that there was any reservation of right upon the part of the plaintiff or its representatives to authoritatively interfere in the management of such business. The report undoubtedly holds forth the idea that these gentlemen were to be treated fairly by the coun*66cil of the university, and that in respect to the question of salaries they should be liberally treated; but there is not a suggestion of any reservation in the absolute character' of the. gift which was to be made by the plaintiff to the defendant. And in this connection it is to be observed that the medical department had found themselves embarrassed for the want of funds; that it was a proprietary institution; that it was found that they could not secure any endowment or any assistance by way of donation which would be of any avail so long as they remained a proprietary institution; and it was because they desired to be upon the basis of a university, relieved from the proprietary interest, that this arrangement was proposed and-was carried into effect. This whole scheme, if the present claim upon the part of the plaintiff is sustained, was a misrepresentation to the world at large of the condition under which this deed of gift, was executed. If Mr. Dimock’s claim that this reservation was made is well founded, then his failure to report this alleged reservation to the council, to whom he was reporting the transaction, would seem very .strongly to savor of an intended suppression of a very ■material fact which might, and undoubtedly would, have prevented the council, from accepting the gift upon any such terms. Mr. Dimock attempts to excuse this suppression of this very material fact by the assertion that the reports were not written by himself. But it appears that some of them were amended in his own handwriting, and that he read every one of them from beginning to end to the council. It seems to me that Mr. Dimock has one of two. horns of a dilemma to take in this situation.. Either he is mistaken in regard to what took place at these meetings at which this agreement was entered into, or he has suppressed material facts, which he knew to be material, from the council of whom he was the trusted agent. It is somewhat difficult to say, under these circumstances, what credit can be placed upon the testimony of a witness whose own acts contradict him in every particular.
. But it may be said that there were other witnesses who testified to the same thing-—■ Doctors Pardee, Witthaus^ Stimson, Thompson and Polk, of the medical faculty, and Mr. Miller, a member of the council and of the medical committee of the appellant and of the board of directors of the respondent. It is true that these witnesses have testified, some of them, substantially to the effect that the *67affairs of the medical department were to be in the hands of the medical committee of the council of the defendant and the faculty of the medical department. But they all concede that the council was to have absolute control of the salaries, and that all that they expected in that regard was that they should be treated fairly. Pardee’s testimony as to the matter was that all that there was was an expectation that they would be treated fairly. Doctors Witthaus, Stimson, Thompson and Polk swear to the agreement. But it will be Qbserved that, when they sent a written statement of their, grievances at aoout the time the misunderstanding between the medical faculty and the council of the university took place, there is not a suggestion therein that the council has not unreserved control, nor a suggestion of any secrect trust or agreement. They say: “ It is sufficient to say that the Medical Committee agreed upon a. plan which was adopted by the Council on May 14th, and, although that plan was not, in our judgment, free from grave objection, we were ready loyally to accept it.” In that ■ plan, adopted by the council on May fourteenth, there was not a suggestion of any such trust or agreement as is sought to be imposed upon the transaction by this action. As has already been stated, there is not an act performed by any of the parties connected with this transaction, at or about the time, that is not hostile to the claim now made. Mr. Miller, who. was a witness upon the part of the plaintiff, testified that he was. present at the time this alleged secret trust was agreed upon, and he does not say a word as to what took place at that interview.
Undoubtedly, the persons who were interested in the plaintiff and who authorized the directors to make this deed of gift to the defendant for the purpose of relieving themselves of what was deemed to be the stigma of a proprietary school, in order that they might as a university get the benefit of an endowment, and, although it was conceded that the result of the assumption upon the part of the defendant of this medical school would be a deficit which it would be necessary for the council of the defendant to make up, expected and had reason to expect fair and liberal treatment at the hands of the defendant, not only in respect to the matter of salaries, but also in respect to the management of the affairs of the medical department; and they believed that the method in which the proposed consolidation with the Bellevue Medical College was to be *68carried out ignored the sacrifices which they had made for the purpose of establishing the close connection between the medical department and the defendant, and was hostile to their interests and to the ideas which they had .cherished and furthered for years.- In a.letter of the 29th of May, 1897, addressed to the chancellor and council of the defendant and signed by the witnesses Polk, Stimson and Thompson, as well as by Doctors Loomis and Woolsey, they say: “ We beg to make a reluctant but most earnest appeal against action which we are compelled to deem injurious to the highest interests of our school and of medical education, and most embarrassing and distasteful to ourselves. We refer to your action in the matter of the proposed consolidation of your medical department with the Bellevue Hospital Medical College.” And after stating their grievances, they close by saying: “ We appeal-to you in the -name of our common interests and labors in- the past, in the name of our school to whose highest interests we are devoted, and in the name and memory of him, now gone from among us, to whose great services to the University you have yourself, Mr. Chancellor, borne so frequent and eloquent testimony.”
Is this the language used by parties who are claiming a want of authority upon the part of the defendant to act ? Clearly not. It is true that during the course of that letter they say“ We, therefore, feel reluctantly compelled formally to state to you that in our opinion our agreement with you has been broken, and in a way and to an extent that are greatly prejudicial to the interests of the department and of ourselves,” but what agreement did they there refer to? It is apparent from the preceding .part of the letter. They say: “We need not here repeat the conditions to govern such consolidation which we deemed essential to the welfare of the department and the success of our methods and plans. It is sufficient to say that the Medical. Committee agreed upon a plan which was adopted by the Council on May 14th, and although that plan was not, in our judgment, free from grave objection, we were ready loyally to accept it.” That was the agreement that they deemed to be broken. It was the plan adopted by the council on May fourteenth, and this reservation of power which formed this secret trust is. nowhere mentioned in that plan.
Again, the same gentlemen write to the chancellor of the defend-* *69ant on the 4th of June, 1897, and say: “ We feel also that the rights, powers and property which we so recently transferred to the University for the furtherance of certain objects are being used against our judgment for other purposes which are antagonistic, and we appeal through you to the Council for the protection of our school and for justice ” — not a suggestion from one end of the written communications to the other of a want of power upon the part of the council, or that there had been any reservation such as is claimed by the oral testimony.
I have not adverted to the oral evidence contradicting the claim of the plaintiff, because it seemed to me that the written declarations of the plaintiff’s witnesses so completely refuted their testimony that no instrument in writing could be nullified upon what so clearly appears to be mistaken evidence. If deeds solemnly entered into are to be set aside upon oral testimony contradicted by every written communication of every witness, then the sooner dependence upon written contracts under seal is abolished the better.
McLaughlin, J., concurred.
Judgment affirmed, with costs.