Bean v. Inhabitants of Jay , 23 Me. 117 ( 1843 )

The opinion of the Court, Whitman C. J. taking no part in the decision, not. having heard the argument, was drawn up by

Sheplev J.

It appears from the report, that the plaintiff on the 29th day of March, 1839, entered into a contract with the defendants to support all the paupers, then opon the town, or that should come upon if, excepting certain persons named, for one year from the first day of May following. The wife of Simeon Lamkin was then a pauper supported by the town, and was not one of the persons excepted. The plaintiff had entered upon and continued in the performance of his contract until March, 1840, when an article was inserted in the warrant for calling the annual meeting “ to see if the town will allow Greenleaf Bean pay for the support of Simeon Lamkin’s wife the past year.” In, the meeting of the inhabitants the article was acted upon, and a vote passed “ to pay Greenleaf Bean for supporting Simeon Lamkin’s wife the last year.” It was proposed to prove, that the vote was passed near the close of the meeting and after a portion of the voters had retired. The presiding Judge excluded the evidence. To receive such testimony and permit it to impair the effect of the vote, would be to make the votes of towns, passed at a meeting legally called, depend for their validity upon the number present, and upon the time when they were passed. What rule should determine the number, that must be present, and the hour, when a vote might be legally passed ? The impossibility of establishing any, by a judicial tribunal, is so obvious as to preclude any argument. Those voters, who are so inattentive to their rights as to retire from a town meeting, before all the articles in the warrant are finally acted upon, must trust them to the decision of those, who remain.

It is contended, that the vote does not determine with sufficient certainty, for what time payment .was to be made, to be binding. The contract of the plaintiff was made in March, 1839, and this vote was passed in March, 1840 ; and it is not difficult to perceive, that by “ the last year,” the year of the contract was referred to, as the support of the paupers from year to year would seem to have been acted upon at the yearly or annual meeting, and the contract then to have been made, although the support of the paupers under it commenced at a subsequent time.

The principal ground of defence however is, that the town was not bound by the vote for want of a consideration to support the undertaking. The plaintiff was obliged to support this pauper by virtue of his special contract, and he received his pay according to that contract for the support of the town paupers. He made a claim, before he had fully executed that contract, to be paid separately for the support of the wife of Latnkin, and openly stated in the town meeting the amount, which he claimed. The grounds, upon which he presented and asserted his claim, are not stated. The conclusion must be from the circumstances, that it was made either on the ground, that the contract did not oblige him to support her, or upon the ground, that there were reasons arising from some mistake or change of condition, which ought to relieve him from the support of her. If made upon the former ground, it will not be denied, that the town had the power to settle and agree to pay all disputed claims; and that it must of necessity be the judge of the expediency of contesting the legal right, or of submitting and agreeing to pay the claim. If made upon the latter ground, it will hardly be denied, that it is competent for a town, when it ascertains, that it has by mistake, or by a change of circumstances, obtained a contract, which acts oppressively upon one of its citizens, to agree to annul or to modify that contract. The argument is, that as an agreement to pay more than is justly due, is not binding, so a contract to afford relief in such a case would not be. The cases are different. When the debt has been determined by an executed contract, the rule may well apply, that a promise to pay more is not binding. But when the contract is yet executory, it is in the power of one party to relieve the other from a performance wholly or in part; and this may be done by a parol agreement. Munroe v. Perkins, 9 Pick. 298. As the liability of towns for the support of paupers arises out of positive enactments, and not from any moral obligation, it' is contended, that a promise to pay for the support of a pauper cannot rest upon any such moral obligation to sustain it. When however the statute has imposed the duty, and the town has by its provisions become obliged to furnish a support to a particular person, one, who relieves the town therefrom, has the same moral right to compensation for the services performed and money expended, as be would have for services performed or money expended for the use of the town'in any other way. If the vote was not intended to adjust a disputed claim, it must have been designed to relieve the plaintiff from the literal performance of a contract not fully executed, and to compensate him for the support of the person, from whose support he had been relieved. It is true, that the vote passed proposed to pay for the past as well as future support, till the contract year terminated. But it is not necessary, that there should be a full consideration to support the contract. It is enough, that it was not made without consideration. And the consideration, that he was to support her during the remaining portion of the year, was sufficient.

The doctrine of estoppel is not applicable to the case. The effect of the vote being to exempt the plaintiff from providing a support for her by virtue of the contract for the remaining portion of the time, the contract cannot be used, as if there had been no variation of its terms by relinquishing rights secured by it, to defeat the effect of that variation. And moreover such an executory contract does not act as an estoppel.

Nor will the vote admit of a construction, that it was intended only as a promise to pay so much towards the performance of the contract. No question was made about his title to that; and this claim was presented independently of it, or as a relief from it.

There is no amount of compensation fixed by the vote, and the town is not obliged by it to pay the sum, which the plaintiff claimed. He will be entitled to a reasonable compensation only, not exceeding the amount, which he claimed. A default is to be entered subject to a hearing in damages before the clerk.