Wells v. Putnam

• Decision Date: 20 October 1897
• Parties: WELLS v. PUTNAM et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

169 Mass. 226

47 N.E. 1005

WELLS v. PUTNAM et al.

Supreme Judicial Court of Massachusetts, Franklin.

October 20, 1897

There was a controversy between Elisha Wells and the town of Deerfield as to his liability on the bond of a tax collector, who had defaulted in the sum of $9,000, and as a compromise, Wells gave his note for $2,350, secured by mortgage, to one Aldrich, in trust for the town. Elmer E Putnam, chosen as trustee in the place of Aldrich, began to foreclose the mortgage at maturity, whereupon a majority of the town, at a town meeting, voted to release Wells, who brought the suit at bar for the purpose of restraining Putnam from proceeding with the foreclosure.

COUNSEL

John A. Aiken, for plaintiff.

Martin & Eddy, for defendant E.E. Putnam.

OPINION

HOLMES J.

There is no doubt that the town may release a part of a debt by way of compromise. Matthews v. Westborough, 131 Mass 521; Id., 134 Mass. 555; Prout v. Fire Dist., 154 Mass. 450, 28 N.E. 679; Agnew v. Brall, 124 Ill. 312, 16 N.E. 230. We assume that it might release the whole, upon considerations of paramount convenience and indirect pecuniary advantage, as to qualify a witness. Ford v. Clough, 8 Me. 334, 344. It may be, very likely, that it can do so on vague grounds of convenience or justice. See Friend v. Gilbert, 108 Mass. 408. But it cannot release an admitted debt, against the dissent of a minority, by way of a mere gift. See Mead v. Inhabitants of Acton, 139 Mass. 341, 1 N.E. 413; Agnew v. Brall, 124 Ill. 312, 315, 16 N.E. 230.

Whether in the present case, the vote to release the plaintiff's note and mortgage was more than a simple gratuity, is a question to be determined from the history and circumstances of the case, and from the conduct of the plaintiff and of the town. Matthews v. Westborough, 131 Mass. 521; Id., 134 Mass. 555. The fact that the note was given by way of compromise of a larger claim looks as if the liability was undisputed, and the town vote a gratuitous benevolence. This impression, perhaps, might be strengthened if it be true, as stated at the argument, that the town had confirmed the compromise effected by its agent, and thus, impliedly, had adopted the view that the claim was just. But it is obvious that the fact ought to be found by the judge who tried the case and heard all the evidence. If we should pass upon the report as it now stands, we should have to act on imperfect indications or...