Town v. Waldo

• Decision Date: 09 August 1890
• Citation: 20 A. 325,62 Vt. 118
• Parties: A. P. TOWN'S ADMR. v. E. D. WALDO
• Court: Vermont Supreme Court

20 A. 325

62 Vt. 118

A. P. TOWN'S ADMR. v. E. D. WALDO

Supreme Court of Vermont

August 9, 1890

GENERAL TERM, OCTOBER, 1889.

Debt on judgment. Plea, accord and satisfaction. Replication fraud. Trial by court at the September Term, 1888, Washington County, TYLER, J., presiding. Judgment for the plaintiff. The defendant excepts. The facts appear in the opinion.

Judgment reversed, and judgment for defendant.

Geo W. Wing, for the defendant.

ROYCE Ch. J., did not sit.

OPINION

MUNSON

The action is debt on judgment, accord and satisfaction are pleaded, and the plaintiff replies that the settlement was procured by fraud.

After taking out execution, Town had several interviews with the defendant about its payment. On these occasions the defendant said he was unable to pay anything, but that if he ever got his pension he could pay. These interviews resulted in talks of compromise, Town being willing to take one-half his claim and the defendant denying his ability to raise that amount. Town finally requested the defendant to come and see him whenever he was able to pay anything.

The defendant was an applicant for a pension, and his claim had been pending for some time. In April, 1884, he received notice of its rejection. He then took measures to have the case reopened and his claim further considered. On the 2d of July he went to Town's house to effect a compromise. He showed Town the official notice of the rejection of his claim, but said nothing as to what had been subsequently done. Town understood, as the defendant intended he should, that the rejection was final. Acting upon this belief, he agreed upon a settlement of his claim for one hundred dollars and a certain heifer. It was then arranged that the parties should meet the next day to complete the transaction. On reaching home that night the defendant learned that his pension had been allowed. The next day the parties met and executed the settlement, the defendant making no mention of the information he had received.

It is evident that the defendant, after encouraging Town to expect payment in the event of the pension being received, induced him to make the settlement by giving him to understand that the claim had been finally rejected. But it is claimed that the representations made were not such as entitled Town to avoid the settlement, because the pension money to which they related was not property from which a collection of the claim could have been enforced. It is true that money due a pensioner cannot be reached by a creditor while it is in the pension office or is in course of transmission to the pensioner. But after it has been received by the pensioner it is like any other money in his hands. Martin v. Hurlburt, 60 Vt. 364, 14 A. 649. After this, its liability to be reached for the payment of debts depends solely upon what may be done with it. The situation of the creditor with reference to it is the same as it would be with reference to a like sum received from any other source. The debtor may keep the money temporarily upon his person, and finally invest it in property exempt from attachment. But he may place it where it will be liable to trustee process, or purchase with it property not exempt.

We are to consider, then, whether a debtor, who has been expecting a sum of money, and has told his creditor that he should be able to pay him if the money was received, can obtain a compromise with the creditor by a false statement that the money is no longer expected, without subjecting himself to the consequences of making a fraudulent...