The opinion of the Court was pronounifed by
Paddock, J.The defendant contends,
1. That there^was no consideration for the promise : but if adjudged otherwise, then,
2. That a special demand on Buell was necessary.
3. That aábfficient tender of performance was made by Buell in March, 1H®>; and
4. That he was not bound in 1826, after the buildings were completed, to make payment.
*54It is undoubtedly true', that every man is by the laws of nature bound to fulfil his contracts ‘ and equally true that neither the laws of this State, nor the Common law, will compel the performance of an agreement, entered into without sufficient consideration, motive, or inducement.
This consideration may arise, either by reason of a benefit resulting to the party promising, or to a third person, at the request of the former, by the act of the promisee ; or by the latter sustaining' loss or inconvenience, or suspending or forbearing any right or remedy in law or equity, at the instance of the person making the promise.
It is not necessary that the consideration and the thing promised should be equal in point of value ; for, so variable are the fashions of the times, or caprice of contracting parties, that the law can affix no rule by whi'cíi the relative value of things can be determined. S&
It is essential to the validity of every c.oiftract made by persons competent to contract', that the assent or consent be mutual, and under such circumstances ‘agno suppose a free, fair and serious exercise of the reacting faculties $ and it matters not whether the assent or promise be express, or implied: for, notwithstanding the opinion of Ch. Just. Holt, in Starke vs. Cheesman, Ld. Raym. 538, to the contrary, such is now the settled law. But in the present case, it is not questioned but that there was a promise made by Buell, directly to the- Corporation of the University of Vermont; but it is contendel,' that the case shows no consideration for that promise.
.. What secret motive Buell might have had, how far his interest was concerned, or his pride of residency was connected with the rebuilding of the edifice, and operation of the Seminary, are considerations not .within the scbpe of research; .not1 are they questions necessary here to be determined. It ¡¿sufficient in this case, that the corporation did accept the proffered assistance of the subscribers ; and upon the faith of their promise, proceeded in the erection of the“l4fildin'gsfmd the expending of their own funds to accomplish the samevJPiSlthough the promise would not have( been mutual if the Ccnqjofatioi$*had sued before they had made any advances towards the erection of the buildings j- yet, it cannot be said, after the acceptance of the subscription, the appointment of a committee to superintend the structure, and a commencement in fact of the work, that the promise was not mutual® for with the commencement of such labours, in good faith, witff a view to the ultimate completion of the superstructure, was a. consummation of *55the consideration, and bound the defendant Buell to a perform- . . 1 anee on his part. .
And this is a stronger case than Pillans vs. Mierop, 3 Burr, 1673, where Justice Yates declared the promise binding of and in itself, without a consideration; giving as a rule of law “ that damage to another, or suspension or forbearance of his right, is a foundation for an undertaking, and will make it binding, though no actual benefit accrues to the party undertaking. And this rule is recognised by Ld. Ellenborough, in Jones vs. Ashburnham, 4 East, 463; and in Bunn vs. Drey, 194th of the same vol. his Lordship says, “that, á consideration of loss or inconvenience sustained by one party, at the request of another, is as good a consideration for the promise by such other, as a consideration of profit or convenience to himself.” The same principle is maintained by a full Court in Williamson vs. Clements, 1. Taunt. 523.
This principle, however, has been too long established, and too clearly understood to be strengthened by multiplying adjudged ■cases.
The case of the Trustees of Phillips Limerick Academy vs. Davis., 11 Mass. 113, is much like the one at bar, with this difference. The action was brought in the name of the Trustees, and the subscription paper was silent as to whom payment was to be-made, there being no payees named.init; and in point of fact, the paper was drawn up and subscribed to, anterior to the application for and granting of the Charter; so that in effect, there was no donee; therefore, nothing could pass by the grant. Shep. Touchstone 229.
The defence was made upon the grounds, that there was not only the want of a plaintiff in the case, competent to exact the payment,but the evidence did hot go to prove a promise or contract which the law would enforce.
Ch. Just. Sewell, in delivering the opinion of the Court, with more severity than can perhaps be justified, said, “ This defence may be justly stigmatized as base and dishonorable ; it may be considered as unjust when offered-under circumstances like these now in evidence.” But the Court wer.e compelled to decide “ that the writing given in evidence, contained no proof of a contract j there being no parties, there could be no mutuality — no valuable consideration.”
The case of E. Larkin vs. S. Dana, 12. Mass. 190, bears a stronger analogy to the present; the subscribers in that case, agreed to lend Everett & Monroe the sums of money set againsj their names respectively, for the purpose of establishing a news- *56and appointed Larkin to receive and manage the applica-don of the same. Larkin advanced his own money, and then 'brought his action to recover the amount Lana subscribed. The 'Court considered, “ that by means of the contract, Larkin was led to confide in the engagement of the defendant so far, as to advance money for him, and should recover it back.
The Farmington Academy vs. Allen, 14 Mass. 172, may be considered a case decisive of the point in question. The subscribers obligated themselves to pay to such persons as the Legislature should thereafter appoint trustees of said Academy. The question was submitted to the Court upon the following statement of facts: “ The defendant signed the paper and subscribed fifty dol- “ lars. After the act ofincorporation was passed,the trustees appoin- “ ted a committee to erect a building for their use ; who afterwards “ applied to Allen and the other subscribers for payment of a portion of their subscriptions. Allen had no money, but delivered some shingles which were used upon the building.”
It will be seen that the promise in this case, like that in Limerick Academy vs. Davis, was not made to any person or corporation that had an existence at the time of making the same. To obviate that objection the plaintiffs were allowed to add the common counts for money had and received, and money laid out and expended; and on those counts, the Court considered the plaintiffs ought to recover, because “ being an inhabitant of the town, he must have known the work was going on; and then, he furnished some materials, and this was sufficient to justify the trustees in proceeding to incur expense on the faith of the defendant’s subscription ; recognizing them as the payees of the same.”
But the case at bar is relieved from the objection, of there being no promisee at the time the promise was made ; and does compare with the one last cited in two important features, that is, the buildings were erected under the eye of the defendant Buell: — further, in March, 1825, Buell went to the contractors, and informed them, that he had hired a carpenter and joiner to work out his subscription. Upon being told that a mason was wanted, he said “ he could get one in Champlain.” This I think as full a recognition of his promise, accompanied with the knowledge thatthe expense of building was going on, as the payment of part under like circumstances was in the case last cited.
It is further contended by the defendant that as the promise was to pay “ another season,” the time of payment was so indefinite, as to make a special demand necessary.
The end of the law is, to do justice between the parties; therefore, such construction must be put upon contracts, as are reason-*57•fble, and as near the minds and apparent interests andjntent of p ardes,as the rules of law will permit; special reference being had to the subject-matter of the agreement. Now, in applying this rule, we are to connsider the destruction of the college buildings, as being a private as well as public loss; the operations of the Seminary were to be suspended until another building should be erected, or some inconvenient place substituted' — the building was to be raised with brick — the dimensions large, and the Spring, Summer, and Autumn months yielding a scanty time in which so great an undertaking could be accomplished. These considerations thrown together, leave but little doubt what was understood between the, parties by “another season.” They must have understood, the disappearing of the next winter, and the opening of Spring, when the work could profitably be commenced. And so Buell understood it, by his applying in March, 1825, and giving information “ that he should pay in labour.” And we are satisfied with the charge of the Court below upon this point, as also that of the demand; for according to Holmes vs. Twist, Hob. 51, cited in Selwin N. P. 92, an averment of notice is not necessary where the connusance of the act to be done lies as well in the notice of the defendant, as the.plaintiff.
Bailey and Marsh, for plaintiffs. Thomposn, for defendant.It is further insisted, that the defendant Buell did make a sufficient tender of performance in March, 1825. It will be noticed, that the offer was not made to the contracting committee, nor to Reed, to whom the demand was sett off; but to Nichols & Herrick, who had no authority to receive the payment, and who had not made themselves parties or privies to the contract.
Furnishing labour or materials according to the contract, and notice to the superintending committee, would have been a good tender. Notice to Reed might have been; but notice to Nichols & Herrick cannot be so considered; and if notice to N. & H. could be thought sufficient, it is very doubtful whether it ought not to be considered as waived by Buell’s saying “ he could get a mason in Champlain.”
The fourth and last point made in argument by defendant, needs no notice, as the council could not have been serious in noting it as a point to be insisted on.
The Court are satisfied with the instructions given to the jury by the County Court; and are also satisfied that the defendant is liable to the present plaintiffs upon his original undertaking, and that he hath not discharged himself therefrom; therefore the judgment of the County Court is affirmed.
Judgment affirmed.