O'donnell v. Town of Clinton
| Decision Date | 04 January 1888 |
| Parties | O'DONNELL et al. v. TOWN OF CLINTON. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
A. Norcross, H.C. Hartwell, and C.T. Baker, for plaintiffs.
The instructions were sufficiently favorable to the defendant and were in accordance with well-settled rules of law. Stuart v. Sears, 119 Mass. 143; Riggs v Hawley, 116 Mass. 596; Prescott v. Wright, 4 Gray, 461; Hoitt v. Holcomb, 23 N.H. 535; Livermore v. Peru, 55 Me. 469; Hall v Holden, 116 Mass. 172. In an action of deceit, actual intent to defraud would be necessary; but in this action, if it is proved that erroneous or false statements were made to the petitioner, by which he was misled, he was entitled to rescind the settlement made by him with the road commissioners and appeal from their award. Stuart v. Sears, supra; Bank v. Bank, 3 Mass. 74.
It was only necessary for the petitioner, in rescinding his settlement with the defendant, to restore, or offer to restore, what he had received from it. Kimball v. Cunningham, 4 Mass. 502; Cook v. Gilman, 34 N.H. 556. The town can only act through its officers. Pub.St. c. 27, § 75. A formal tender is not necessary, but the town was sufficiently informed of the petitioner's intent to rescind the settlement, and the money was left with the defendant's treasurer, where it could, at any time, be taken by its proper officers. The duty of the town treasurer is to receive and take charge of all money belonging to his town. There is no statutory regulation that a tender of money shall be made to him.
The evidence of O'Donnell, as to the conversation with McGown at petitioner's house, cannot be objected to, as this evidence is shown to have been in rebuttal to the same conversation or interview previously put in by the defendant.
J.W. Corcoran, Herbert Parker, and W.R. Dame, for defendant.
The propositions of law for which the defendant contends are as follows: (a) The release of the petitioner Michael O'Donnell is a bar to his petition. (b) Said release is neither void nor voidable at law upon the evidence disclosed in the exceptions. (c) The evidence admitted is incompetent and insufficient to make out the case of the petitioner. (d) The court erred in the charge to the jury. The contention of the petitioner, that the settlement thus made and the release thus given are void, because of the representations and promises made to him by members of the board of road commissioners of said town, is not supported upon principle or authority. Road commissioners, when exercising their duties and powers in laying out and altering town ways, awarding damages therefor, and constructing the same, are public functionaries, and not town officers. They can, therefore, only exercise the powers expressly given them by statute, and can bind their towns only when acting within the limits of the authority thus given. Brimmer v. Boston, 102 Mass. 19; Kean v. Stetson, 5 Pick. 492; Harrington v. Harrington, 1 Metc. 404; Higginson v. Nahant, 11 Allen, 530. See, also, Pub.St. c. 49, § 71; Id. §§ 6, 8, 14, 16; and Russell v. New Bedford, 5 Gray, 34. The legal presumption is that the petitioner knew the law, and therefore knew that the award made by the road commissioners must have been an award for all damages that he might suffer from the laying out aforesaid. Newman v. Sylvester, 42 Ind. 106; Murray v. Corothers, 1 Metc. (Ky.) 71. All representations upon this point by the road commissioners must have been representations of law, rather than of fact, and no contract can be avoided for fraudulent representations as to law. Rice v. Manufacturing Co., 2 Cush. 86; Starr v. Bennett, 5 Hill, 303; Fish v. Cleland, 33 Ill. 238; Smither v. Calvert, 44 Ind. 242; Rashdall v. Ford, L.R. 2 Eq. 750. Nor can he set aside his settlement with the town because of the non-performance of a promise which he knew was without the power of the promisor to perform, and which he knew, moreover, was illegal.
The promises alleged to have been made to the petitioner Michael were collateral to the main contract and therefore formed a supplementary undertaking. Nickerson v. Dyer, 105 Mass. 320; Ayre's Case, 25 Beav. 513; Donahoe v. Emery, 9 Metc. 66.
The petitioner, to avoid his release on the ground that he was induced to make it by the misrepresentations of the defendant, must show that such misrepresentations were intentional. Page v. Bent, 2 Metc. 371; Insurance Co. v. Matthews, 102 Mass. 226. Brown v. Castles, 11 Cush. 349, and cases cited. The scienter is material and vital, in order to avoid the release. King v. Eagle Mills, 10 Allen, 548; Pearson v. Howe, 1 Allen, 207; Griswold v. Sabin, 51 N.H. 167; Green v. Dixon, 23 Beav. 535. Where each party is possessed of the same information, or has an equal opportunity to ascertain the truth, it cannot be said one willfully withheld anything from, and thereby deceived, the other. Brown v. Leach, 107 Mass. 364; Brown v. Castles, supra; Hobbs v. Parker, 31 Me. 143.
The false statements must have related, distinctly and directly, to the release itself, and have affected its very essence and substance, being the material inducement or motive to the act of the other party, by which he was actually misled to his injury. Taylor v. Fleet, 1 Barb. 471; Byard v. Holmes, 34 N.J.Law, 296; Denne v. Light, 8 De Gex, M. & G. 774. Mere representations as to what the town or road commissioners would do in the future, can in no way be construed as concerning the contents of the release. Therefore the release could not be invalidated by any such representations. If the petitioner signed said release without reading it, or, being unable to read, without trying to inform himself of its contents, he cannot avoid its legal consequences. Insurance Co. v. Matthews, 102 Mass. 226; Grace v. Adams, 100 Mass. 507. See, also, Bank v. Kimball, 10 Cush. 373.
Moreover, the petitioner Michael could not, under the evidence aforesaid, maintain his petition until he had returned, or offered to return, the money he had received. Brown v. Insurance Co., 117 Mass. 479; Estabrook v. Swett, 116 Mass. 303; Coolidge v. Brigham, 1 Metc. 547. This case is entirely different from Mullen v. Railroad Co., 127 Mass. 87, where plaintiff took the money as a gratuity. To constitute a valid tender, it must be made to the creditor, or to some one authorized to receive it in his behalf. King v. Finch, 60 Ind. 420; Kirton v. Braithwaite, 1 Mees. & W. 310. A tender to the road commissioners is not such a return of the money.
The charge to the jury, that "in the present case, it is not necessary that there should have been an intent to cheat or defraud the petitioner, but it is necessary to show that there was some act, declaration, or conduct, which was calculated to mislead the petitioner, and which did so mislead him," was wrong, in that it did not make the intent an essential part of the representations. Insurance Co. v. Matthews, supra; Brown v. Castles, supra; Green v. Dixon, 23 Beav. 535; Griswold v. Sabin, 51 N.H. 167.
Again, the court erred in not ruling that the fraudulent representations must have related to the contents of the release, or have been such as to make the petitioner believe that the paper he was signing was not a release. Byard v. Holmes, 34 N.J.Law, 296; Taylor v. Fleet, 1 Barb. 471; Frenzel v. Miller, 37 Ind. 3.
OPINION
This is a petition for the assessment or damages, caused by taking land for a town way, including damage to the petitioner's house. Pub.St. c. 49, §§ 79, 105. The petitioner, before filing his petition, had accepted $200 awarded by the road commissioners, and had set his mark to a receipt prepared by them acknowledging full payment of all claims. The defendant asked a ruling that this settlement was a bar, which was refused, and the defendant excepted.
The petitioner's evidence tended to show that he could not read, and that the road commissioners knew of his inability; that at the time of accepting the $200 he stated that he took it for the land alone, and also stated that he signed the receipt for the land alone, understanding that to be its tenor; that the road commissioners expressed no dissent, but through their spokesman, McGown, said "that would be all right," and that as soon as the petitioner understood that the commissioners regarded the payment as a full settlement, he repudiated the transaction tendered the money back to them, giving them a notice addressed to the town, and left the money with the notice, in the hands of the town treasurer, although no sufficient tender was made to the latter. The court instructed the jury that it was not necessary that there should have been any intent to defraud the petitioner, but that it was necessary to show some conduct which was calculated to mislead him, and did mislead him. In the connection in which the instruction was given it must be taken to mean that the petitioner must have been misled as to the terms of the receipt and as to what the money was paid for. Thus construed, and having reference to the petitioner's evidence, it was sufficiently favorable for the defendant, and the defendant's request for a ruling was rightly refused. If the petitioner was ignorant of the contents of the instrument prepared by the defendant, and was known to be so by the defendant's agents, and if he expressly declared, in good faith, that he set his mark to it as a receipt for the damage to his land alone, and the defendant's agents thereupon accepted the instrument in silence, or with words importing an assent to that declaration, such conduct would be a representation that the instrument was what it was signed for. Trambly v. Ricard, 130 Mass. 259, 261; Hall v. Holden, 116 Mass. 172, 176. And a representation of what is known to...
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