Gregg v. Town of Weathersfield

| Vt. | Feb 15, 1883

The opinion of the court was delivered by

Powers, J.

The plaintiff offered evidence tending to prove that, without fault on his part, he had suffered damage by reason of the insufficiency of a highway in the defendant town, which the town was bound by law to keep in repair; that he gave a written notice of such injury to the town, proper in form, within thirty days of the happening of the accident, but not within twenty days as the law requires; and that he was misled respecting the time within which such notice should be given by information given him, on which he relied, by one of the selectmen of the defendant town ; that under these circumstances, a legal meeting of the voters of the defendant town was warned and holden,at which the plaintiff presented his claim for damages for the injuries aforesaid, and insisted that the town could not take advantage of the defect in the notice, and thereupon the town voted to pay him the sum of $200, but had refused to give him an order or otherwise pay said sum.

This action is predicated upon said vote and not upon the original cause of action; and it is argued on the one hand that the promise is wholly without consideration inasmuch as the failure to give seasonable notice of the injury wholly invalidated the plaintiff’s right of action; and on the other, that the promise to pay was a compromise of a doubtful claim, and therefore rested on good consideration. The misinformation of one of the selectmen was not a statement or declaration for which the town is responsible. It was the act of the minority of the board and not within the scope of official duty.

The plaintiff has now the same right to bring suit upon his original claim that he had before said vote was passed. He has done, or omitted to do, nothing that bars his right. He has parted with nothing of value, suffered no detriment nor forborne the exercise of any right, by reason of said vote. A compromise imports a mutual yielding of opposing claims, the surrender of some right or claimed right in consideration of a like surrender of some counter claim. If the right surrendered is of doubtful validity, or indeed of no validity at all, its surrender may be a valuable consideration for a promise. But something more must be shown than the mere existence of the claim. The plaintiff does not say in his proposed evidence that he forbore to sue his claim, relying on the defendant’s promise to pay. Waiving the question of the power of a town to pay out money upon invalid claims of this character — a question we do not decide — the plaintiff would have stated a cause of action if he had offered evidence that he forbore to take contemplated legal proceedings to enforce his claim by reason of the action of the town. Says Cockburn, Ch. J., in Callisher v. Bischoffsheim, L. R. 5 Q. B. 449: “ The authorities clearly establish that if an agreement is made to compromise a disputed claim, forbearance to sue in respect to such claim is a good consideration, and whether proceedings to enforce the disputed claim have or have not been instituted makes no difference. If the plaintiff bona fide believes he has a fair chance of success, he has a reasonable ground for suing, and his forbearance to sue will constitute a good consideration.” The proposed evidence disclosed no consideration for the vote. The judgment is affirmed.