Paine v. City of Boston

• Decision Date: 22 June 1878
• Citation: 124 Mass. 486
• Parties: Henry W. Paine v. City of Boston
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

124 Mass. 486

Henry W. Paine v. City of Boston

Supreme Court of Massachusetts

June 22, 1878

Argued March 15, 1877; March 16, 1877

Suffolk. Contract. The first count was on the following order, passed by the city council of the defendant city, and approved by the mayor on September 12, 1870: "Ordered that there be allowed and paid to Henry W. Paine, as assignee of Charles Burrill, the sum of forty thousand dollars, in full settlement of all claims against the city, and all persons acting personally, or in behalf of the city in this matter, for services rendered and money expended by said Burrill in procuring credits upon the quota of the city in 1864; and that the same be charged to the fund appropriated for incidental expenses. Provided, that such receipts and discharges shall be executed, both by said Burrill and by said Paine, as shall be satisfactory to his honor the mayor and the city solicitor." The plaintiff also filed an amended count, the substance of which appears in the opinion.

At the trial in this court, before Colt, J., without a jury, the following facts were proved or admitted:

During the year 1864, Charles Burrill rendered services and incurred some expenses in obtaining credits to be made on the military quota of the city of Boston, for which services and expenses he made a demand upon the city for a large sum of money, the payment of which was refused. Subsequently Burrill commenced an action in the Circuit Court of the United States for the District of Massachusetts, against the city, to recover compensation for such services and expenses, which was discontinued by him on May 11, 1869, and in which final judgment was rendered for the defendant on August 12, 1870. In February, 1869, Burrill presented to the city council of Boston a petition for compensation for his services and expenses in which he stated that he had resolved to discontinue his action against the city; and, after the rendition of the above judgment, the order in question was passed and approved. Before the passage of the order, Burrill made an assignment of all his claims in the premises to the plaintiff, and gave notice thereof to the defendant.

Before payment was made, on the petition of certain tax-payers, the city and its officers were restrained temporarily, by an injunction of this court, from making this payment, and the payment was not made. On April 14, 1871, the Legislature passed the St. of 1871, c. 183, which took effect on its passage, and was entitled "An act to authorize the city of Boston to pay to Charles Burrill the sum of forty thousand dollars." ^[*] On May 26, 1871, the injunction was dissolved. Burrill and the plaintiff then demanded payment of the city, and tendered such receipts and discharges as were satisfactory to the mayor and city solicitor, which payment was refused; and the city has never paid the same, nor any part thereof.

The plaintiff contended, as one ground of legal consideration that the settlement and termination of the plaintiff's action furnished the legal consideration for the passage of the order of September 12, 1870.

The judge permitted the plaintiff to introduce in evidence against the defendant's objection, the records of the city government, the correspondence between the city government and the city solicitor, and the printed report of the debates, all preceding and relating to the passage of the order in question. It appeared from these that on February 23, 1869, the board of aldermen requested the city solicitor to inform them of the condition of the action of Burrill against the city, in response to which the city solicitor on March 1, 1869, stated that Burrill's counsel had recently notified him that the action would not be further prosecuted, and that no further effort would be made by him to recover his claim by any legal means; that, after Burrill on May 11, 1869, discontinued his action against the city and agreed that such entry might be made as the city solicitor should deem necessary, the city government on May 20, 1869, referred his petition to the committee on claims, which reported that Burrill had rendered some service for which he should receive compensation, but was unable to agree as to the amount; and that, after many debates on the subject, in the course of which members of the city government referred to the claim of Burrill as an "equitable claim," to his action at law as terminated in favor of the city, and to the fact that he had no legal claim against the city, and the only assertion, that the action was discontinued in consideration of the case being settled, being at once denied, the board of aldermen on May 23, 1870, passed the order in question, and the common council on August 11, 1870, concurred in its passage. The evidence introduced by the plaintiff also set out at length the reasons assigned by various members of the city government for voting in favor of or against the...