Hall v. Inhabitants of Holden

• Decision Date: 24 October 1874
• Citation: 116 Mass. 172
• Parties: Theron E. Hall v. Inhabitants of Holden
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

116 Mass. 172

Theron E. Hall v. Inhabitants of Holden

Supreme Court of Massachusetts

October 24, 1874

[Syllabus Material] [Syllabus Material]

Worcester. Contract for money had and received. Writ dated December 19 1873.

At the trial in the Central District Court of Worcester, the plaintiff put in evidence tending to show the following facts: In the spring of 1861, the defendant sent to Fort McHenry in Maryland certain pistols and cartridges to be distributed among the members of a company of soldiers recruited in the defendant town; the officers refused to allow the soldiers to have the pistols, and they were found by the plaintiff in the store-house at Fort McHenry; he reported the facts to the selectmen of the town, and they requested him to do what he could with them. The plaintiff then delivered them to a person who falsely represented that he bought them for the ordnance department. The fact of the sale was communicated to the selectmen of the defendant town and was assented to by them. Nothing was received for the pistols.

The plaintiff put in evidence certain records of the defendant town, showing the appointment of a committee to whom the matter was referred, and the following report made by them on March 2, 1863, signed by Joab S. Holt and the other members of the committee:

"The committee chosen by the town to investigate the matter concerning pistols and cartridges which the selectmen of Holden gave an order to Captain T. E. Hall on Major Charles Devens, who had them in charge at Fort McHenry, Maryland, and who delivered them to Captain T. E. Hall, who took them to Washington and sold them to Captain Perkins, whom he supposed to be in the employment of the government. Said Hall says he has never received anything for them, and they were afterwards pawned to the proprietors of the Kirkwood House by Captain Perkins. Your committee have received from Captain T. E. Hall two hundred and seventy-eight dollars and forty cents, the full cost of thirty-two pistols and thirty-two hundred cartridges, and have paid the same to Charles Knowlton, treasurer of the town of Holden, and taken his receipt for the same. Your committee are unanimous in saying that we have received full compensation for the pistols." The plaintiff's counsel stated that he offered the report of the committee for the purpose of showing the reception of the money.

The plaintiff testified that he received a letter from this committee in regard to the pistols; and while at home on a furlough in February, 1863, he had a conversation with Holt, who has since died, in regard to the claim of the town. The defendant objected to evidence of any conversation of Holt that would vary and control the written report of the committee, as the report was introduced by the plaintiff, and contended that such conversation was generally incompetent. The objection was overruled, and the defendant alleged exceptions. The plaintiff then testified that Holt told him that he was one of the committee of the town, and wanted to settle the matter about the pistols, and if it was not settled he should sue the plaintiff; that the plaintiff said he did not owe the town anything; that he then handed to Holt a five hundred dollar bill, and said, "Take this, or just as much as may be necessary, and hold it until such time as I shall make an explanation about the matter to the town; that I know that if the town could know the facts they would be satisfied, and would not press the claim. I wish you to understand that I do not pay this money for the pistols, and that I will not acknowledge that I owe the town for them;" that in the evening of the same day, Holt saw the plaintiff again, and gave him back the change, keeping $ 278.40, the original cost of the pistols; that Holt then gave the plaintiff a receipt acknowledging payment for the pistols, which the plaintiff refused to receive, saying to Holt: "You know that is not the transaction; I never paid you money for the pistols."

The plaintiff also put in evidence the record of the defendant town of an article in the warrant for a town meeting and a vote upon it, as follows: "April 7th, 1873. Article 13th. To see if the town will refund to T. E. Hall, money deposited by him in the hands of Colonel J. S. Holt, upon a demand made by the town for payment of a lot of pistols, or act or do anything relative to the same." "Voted that the town refund the money to T. E. Hall, which he deposited in the hands of Colonel J. S. Holt, and interest from the time said Hall made the deposit." It also appeared from records of the town that said sum was paid over to the town treasurer and received by the town before the report of the said committee was made.

On cross-examination the plaintiff testified that he deposited the money voluntarily, knowing all the facts in relation to the matter, because Holt threatened to sue him, and he did not desire to have a suit against him while he was in the field, and could not attend to it, and to stop the rumors against him; that he had article...