Assuming that the subscription paper signed by Mr, Ci’ook was in such form as to constitute, in connection with the subscriptions of others, and the implied promise of the plaintiff to apply the money to the purpose mentioned, a valid contract between him and the plaintiff, still we think the conditions were not so far performed as to make his conditional promise to pay an absolute promise.
The subscription was “ upon the express condition, and not otherwise, that the sum of $45,000 in the aggregate shall be subscribed or paid in for the purpose hereinafter stated, and if within one year from the date said sum shall not be subscribed or paid in for such purpose, then this agreement to be null and of no effect.” Plainly valid subscriptions or actual payments to the amount of $45,000 were contemplated as the condition precedent to absolute liability. (N. Y. Exchange Co, v. De Wolf, 31 N. Y , 273.) The subscription of $5,000 by the “Ladies’ Association” clearly was not legally binding upon the twenty-five or thirty ladies who assembled and passed the resolution to raise the money, but did not pass it to make the subscription. They had no actual organization such as rendered the association as such capable to contract. Their president, who wrote the name of the association to the paper as a subscriber for the $5,000, had no authority to bind any one but herself, and this she did not undertake to do. She did not write her own name to the subscription paper. The entire transaction was simply a testimonial of their good will and of their willingness to try to raise the sum named, but it lacks the essential of capacity to contract and of a valid contract. The resolution of the “ young men of the church ” is invalid for the same reasons.
The subscription “Sunday school by R. F. Todd” is invalid. Mr. Todd did not assume to bind himself. He assumed to be the agent of a “ Sunday school,” which was incapable of binding itself as a school by any form or agent it might employ or designate. Mr. Todd, by making this subscription, simply represented that he had all the power and authority the Sunday school could give him, but as it could give no efficient power, he cannot be presumed to *457bave represented that he had any , and, therefore, does not occupy the position- of an agent who represents himself tc hold the power he does not possess, to bind a principal, who, if existing, could bind himself, as in the case of Union Hotel Co. v. Hersee (79 N Y , 455), cited by the plaintiff.
The plaintiff contends that the defendant, with full knowledge of these imperfect subscriptions, waived their imperfections. No doubt he did so to the extent that he made payments, and we may believe that if he had lived he would have waived them still further. But death devolved upon his representatives, his legal liabilities, not the fulfillment of his benevolent purposes. There is no evidence to the effect that the payment óf a part of his subscription by Mr Crook, caused the plaintiff tc relax any effort or incur any obligation, or do or omit anything to its prejudice. The element of estoppel is wanting, and without it a waiver of the condition precedent essential tc the obligation of the contract cannot be presumed. The plaintiff cites Hutchins v Smith (46 Barb , 235), and Dutch Church v. Brown (17 How Pr., 287). Butin both of those cases the plaintiff did, at the request of the defendant, acts which would be to the plaintiff’s prejudice if the subscriptions were invalid,
The judgment must be reversed, the referee discharged new trial granted, costs to abide the event.
Learned, P. J.; Bockes, J, concurred,Judgment reversed, new trial granted referee discharged, costs to abide event.