169 Mass. 226 | Mass. | 1897
There is no doubt that a town may release a part of a debt by way of compromise. Matthews v. Westborough, 131 Mass. 521, and 134 Mass. 555. Prout v. Pittsfield Fire District, 154 Mass. 450. Agnew v. Brall, 124 Ill. 312. We assume that it might release the whole upon considerations of paramount convenience and indirect pecuniary advantage, as to qualify a witness. Ford v. Clough, 8 Greenl. 334, 344. It may be, very likely, that it can do so on vaguer grounds of convenience or justice. See Friend v. Gilbert, 108 Mass. 408. But it cannot release an admitted debt against the dissent of a minority by way of a mere gift. See Mead v. Acton, 139 Mass. 341; Agnew v. Brall, 124 Ill. 312, 315.
Whether in the present case the vote to release the plaintiff’s note and mortgage was more than a simple gratuity is a question to be determined from the history and circumstances of the case, and from the conduct of the plaintiff and of the town. Matthews v. Westborough, 131 Mass. 521, and 134 Mass. 555. The fact that the note was given by way of compromise of a larger claim looks as if the liability was undisputed, and the town vote a gratuitous benevolence. This impression perhaps might be strengthened if it be true, as stated at the argument, that the town bad confirmed the compromise effected by its agent, and thus impliedly had adopted the view that the claim was just. But it is obvious that the fact ought to be found by the judge who tried the case and heard all the evidence. If we should pass upon the report as it now stands, we should have to act on imperfect indications or artificial presumptions, instead of a living belief such as the evidence naturally would produce. The report must be discharged, but perhaps the opinion which we have expressed upon the substantive question of the case will be sufficient to prevent the necessity of bringing it here again.
B,eport discharged*
