Subscriptions to a charitable corporation are enforceable only if the charitable corporation gives some consideration for the promise to pay, or was induced, by the promise, to perform some act which it would otherwise not have performed. (Matter ofTaylor, 251 N.Y. 257.) Though the doctrine of consideration is not applied "in all its ancient rigor" to charitable subscriptions, yet the question in each case still is whether the enforcement of the charitable subscription "can be squared with the doctrine of consideration as qualified by the doctrine of promissory estoppel." (Allegheny College v. NationalChautauqua County Bank, 246 N.Y. 369, 374.)
In this case the subscription is not, in form, a promise to pay the sum specified in consideration of a promise to be performed hereafter by the charitable corporation, nor is it, inform, either a request to the corporation to perform a specified act or a promise to pay conditioned upon the performance of any act by the hospital. On the contrary, a promise to "aid and assist" a hospital "in its humanitarian work" assumes that the hospital expects *Page 436 to continue its work, and the pledge or subscription here expressly recites that the consideration for the promise of the defendant is "the promises of others contributing for the same purposes," and the only request contained in the subscription instrument is addressed to "each and every other contributor to make his contribution in reliance upon the contribution of the undersigned herewith made." As Judge HUBBS points out in his opinion, "it is unquestioned that the request that other subscribers make contributions in reliance on appellant's contribution, stated as a consideration in the subscription agreement, is not consideration which will support appellant's promise." That being true, it follows, of course, that the complaint is insufficient unless it alleges some other consideration.
I do not question that, as Judge HUBBS points out, "consideration in such a case may be shown from facts outside the subscription agreement," nor do I question that "the agreement can be read as though it said `to aid and assist the hospital in carrying on its humanitarian work, I agree to pay.'" Gifts or promises to pay money to a hospital, where no other purpose is specified, are ordinarily made "to aid and assist the hospital in carrying on its humanitarian work," and even if the subscription agreement did not so say, we might infer that the promise was made for that purpose in this case. That is not enough to make the promise enforceable. In some cases, particular subscription agreements have been construed as an offer to contract which when acted upon by incurring liability becomes a binding obligation. (Allegheny College v. National Chautauqua County Bank, supra;Roberts v. Cobb, 103 N.Y. 600; Keuka College v. Ray,167 N.Y. 96; Barnes v. Perine, 12 N.Y. 18; Presbyterian Societyof Knoxboro v. Beach, 74 N.Y. 72.) In all these cases, however, the subscription or promise was to become effective only if in return the beneficiary promised or actually performed some act which it otherwise would not *Page 437 have been obligated to perform and would not have performed except for the inducement offered by the promisor. Decision in all these cases was placed upon findings of request or offer, on the one hand, and acceptance on the other hand. The court has reached the opposite conclusion in cases where the subscription was a promise to pay a sum of money to the general funds of the beneficiary (Trustees of Hamilton College v. Stewart, 1 N.Y. 581), or to pay off an existing obligation (Presbyterian Church v. Cooper, 112 N.Y. 517), or even where a promise was made to a church "for the purpose of building its church" and though it appeared that thereafter a church was built, it did not appear that the church, after the promise was given, "altered its position to the knowledge of the promisor and in the reasonable belief that the promise would be kept." (Matter of Taylor,supra, p. 263.) No case in this court is cited, nor have I been able to find a case where a charitable subscription has been enforced without allegation and proof that the promise constituted a request which induced the beneficiary to change its position in reliance upon the promise. Indeed, there is implicit in Judge HUBBS' opinion the assumption that a subscription to charity is, under the rule applied in this State, enforceable only if it can be construed as an "offer for a unilateral contract * * * and part of the consideration requested in the offer is given or tendered by the offeree in response thereto." (American Law Institute, Restatement of the Law of Contracts, vol. 1, § 45.)
The only allegation in the complaint challenged on this appeal, which, it is said, would admit proof that an offer has been made and accepted, is contained in paragraph seventh: "That upon the said subscription and agreement, the said Beth Israel Hospital Association proceeded in its humanitarian work, obtained other like subscriptions, expended large sums of money and incurred large liabilities, and has otherwise duly performed all the conditions on its part to be performed." A complaint is insufficient unless it alleges the ultimate fact upon *Page 438 which liability depends; even allegation of evidentiary facts from which, if unexplained, an inference of the ultimate fact would follow is insufficient. (De Cordova v. Sanville,214 N.Y. 662.) In this case concededly the ultimate fact upon which liability might be predicated is that the plaintiff's assignor accepted an offer made by the defendant; and the complaint seems to me significantly silent there. The allegations of the complaint should apprise the defendant of the issues he must meet and guide the trial judge in the admission and exclusion of evidence. It is said that paragraph seventh of the complaint may be construed as an allegation that "relying on the agreement to aid and assist by paying, the hospital acted." To show consideration the plaintiff must go further. It must prove that the plaintiff changed its position, that is, it incurred some liability or expended some money or in other respect incurred some detriment because the defendant so requested, or — if we accept the doctrine of promissory estoppel — as a consequence of the promise or in justified reliance thereon. Mere continuance of its charitable work as it might have done even if no promise had been made, does not constitute consideration for the promise or give rise to a promissory estoppel. The complaint is insufficient because even under the most liberal construction, it fails to allege that when the hospital expended large sums of money or incurred large liabilities, its acts were intended or accepted as the consideration "requested in the offer * * * or tendered by the offeree in response thereto" (Cf. section 45 of Restatement of Law of Contracts), or that the hospital thereby "altered itsposition * * * in the reasonable belief that the promise would be kept." (Cf. Matter of Taylor, supra, p. 262.)
The order of the Appellate Division should be reversed and the first certified question answered in the negative.
CRANE, Ch. J., O'BRIEN, LOUGHRAN, FINCH and RIPPEY, JJ., concur with HUBBS, J.; LEHMAN, J., dissents, in opinion.
Order affirmed, etc. *Page 439