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More Game Birds v. Boettger

Decided: July 13, 1940.

MORE GAME BIRDS IN AMERICA, INC., A CORPORATION, PLAINTIFF-APPELLANT,
v.
THEODORE BOETTGER, DEFENDANT-APPELLEE



On appeal from the Bergen County Court of Common Pleas.

For the appellant, William Henig (L. Stanley Ford, of counsel).

For the appellant, Breslin & Breslin (John J. Breslin, Jr., and James A. Major, of counsel).

Before Brogan, Chief Justice, and Justices Parker and Perskie.

Perskie

The opinion of the court was delivered by

PERSKIE, J. The basic question requiring decision in this cause is whether the court below correctly adjudged that defendant was not liable for the balance of his written charitable subscription to plaintiff.

By concession of counsel for the respective parties, this cause, after issue was joined, was submitted to the trial judge, without a jury, for his decision. The record upon which the trial judge reached his decision consists in part of stipulated facts and in part of oral testimony.

From the record so submitted, it appears that plaintiff is a "non-profit corporation." It was organized in 1930 for the purpose of "conserving game birds in America," and to "establish hatcheries, refuges, and to teach vermin control."

At the solicitation of plaintiff's then vice-president and general manager, defendant, on or about May 12th, 1931, signed the following writing the receipt of which was acknowledged by the plaintiff:

"MORE GAME BIRDS IN AMERICA, INC., 580 Fifth Avenue, New York City

In consideration of the gifts of others to 'More Game Birds in America, Inc.,' I subscribe and agree to pay to The Foundation the total sum of $5,000.00, payable in yearly installments of $500.00 each, as and when called for.

This subscription obligation shall be binding upon my heirs, executors and assigns and is made in consideration of the effort by the Treasurer, or other officers or agents of the Foundation, to obtain subscriptions from other individuals, ...


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