116 Mass. 172 | Mass. | 1874
The vote of April, 1873, to refund to the plaintiff the money deposited by him with Holt, was an express promise for a valid consideration, and was competent evidence in an action against the town for money had and received. The language of the vote carries with it the admission that the money so deposited belonged to the plaintiff, and there was evidence introduced at the trial that Holt, who acted as one of the committee in behalf of the town, erroneously or wrongfully paid it into the town treasury. It is a case where the money of the plaintiff, having been improperly paid to the town by its agent, the town, in consideration that it has the money under such circumstances, votes to repay it. We know of no reason why a town has not the power to pass such a vote, or, having passed it, is not bound by it. Such a vote is not revocable, but gives a right of action, which cannot be defeated without the consent of the party in whose favor it was made. The vote of the town, in November, 1873, rescinding the vote of April, 1873, was therefore properly excluded. Nelson v. Milford, 7 Pick. 18. Bancroft v. Lynnfield, 18 Pick. 566. Thayer v. Boston, 19 Pick. 511. Cushing v. Stoughton, 6 Cush. 389, 392. Hunt v. Roylance, 11 Cush. 117.
The vote was in form a contract to pay, and whether it was an original promise, on which an action could be maintained, or an acknowledgment of a debt, barred at the time by the statute of limitations, is immaterial in this case. It was competent evidence in either aspect. It was not therefore important or material when the plaintiff made his explanation in regard to the sale of the arms; the vote of the town shows it was at that time satisfied he was not in default.
The conversation with Holt, the accredited agent of the town, at the time the money was given him, was competent as part of the transaction, and as showing the terms and conditions on which he took it and consented to hold it, and his acquiescence in these terms and conditions may be presumed by his silence. Nor was evidence of the conversation with Holt incompetent because it varied the report, which he afterwards signed and submitted tc the town. The report was put in by the plaintiff to show the
The other instructions prayed for were properly refused, having no application to the facts as presented in the evidence reported. ¡Exceptions overruled.
