Paine v. City of Boston

Lobd, J.

The vote of a municipal corporation, which looks 10 the payment of money to a person, may or may not be a con« *489 tract, which may be enforced in law. If the subject of the vote be an original proposition contemplating acceptance and action on the part of another, such acceptance and action may complete the contract so that an action can be maintained upon it. If the vote be not an original proposition, but relates to a matter of negotiation or difference between the municipality and another, and is in the nature of a tender of compromise, then it may become a contract by acceptance by the other party, before it is revoked. Ordinarily votes of towns and cities are not contracts.

In the large cities, in which the two branches of the city council must concur, and the vote must be approved by the mayor before it takes effect, a vote setting apart money for a special purpose is in its nature legislative, and is rather an appropriation than a contract. In the present case we think it entirely clear that the order of the city council of Boston of September 12, 1870, is not an original contract which may be declared on as such.

The declaration in the first count treats it simply as a money order or draft; and declares on it as a check, if drawn by a vote of the city council, would be declared on. We think it cannot be so treated; and the course of the trial indicates that the plaintiff so thought, for he filed an amended count, in which he set forth that one Burrill had a large claim against the city of Boston, that such claim had been put in suit, and that pending such suit a proposition of compromise was made, that the pendency of said suit was an obstacle in the way of a compromise of the claim, and that said suit was withdrawn for the purpose of removing such obstacle, and that thereupon and in consideration thereof, the city, in settlement and compromise of the said claim, passed that order, which the plaintiff, to whom the claim of said Burrill had been assigned, and the said Burrill assented to as a compromise and settlement of said claim; other steps in the course of the proceeding towards the compromise are alleged in the declaration, such as an agreement that judgment in said suit should be entered for the defendant, and an actual entry of said judgment.

The defendant denies that any such arrangement or compromise as is set up in the amended declaration was made; and contends that if such arrangement was made by the city council *490 it was ultra vires, and was not binding upon the city. Although, for reasons stated below, it is not important for the decision of this case, we see no reason why all the facts known to exist at the time of the passing of the order, and all the circumstances surrounding and accompanying the transaction, may not be given in evidence for the purpose of showing that the order was passed as a tender of compromise of a pending disagreement between the parties, in order to show that the other party to the controversy accepted the offered terms of compromise and thereby agreed thereto, thus consummating a contract of settlement and compromise. Nor is it necessary to decide whether, if the arrangement declared on were proved, it is ultra vires, because we are satisfied that the ruling of the presiding judge, that the evidence would not justify a finding that the termination of the action, or any agreement to terminate it, was a legal consideration for the passage of the order, was correct.

There was no sufficient evidence upon which the jury were authorized to find any such compromise and adjustment of a claim as is set up in the declaration. It stands therefore that the city of Boston appropriated the sum of forty thousand dollars for the payment of a claim of the plaintiff. That there was any debt due upon which the city was liable, there was neither allegation nor proof.

The only declaration was that the order was passed in settlement of a disputed claim. That allegation is not supported by sufficient proof to warrant a verdict upon it in-favor of the plaintiff. For, although the circumstances surrounding and accompanying the passage of the order may be given in evidence, it does not by any means follow that the motives, reasons and considerations which operated upon the minds of the members of the council to induce them to vote for an order which partakes ao much of the character of legislation, are competent or proper. If competent, however, there is nothing in such proceedings indi eating that the suit was discontinued in consideration of the passage of the order. On the other hand, the suit was discontinued before the petition of Burrill was acted upon by either branch of the city council; and city officials had been notified that no further attempt to recover any claim by legal means would be made, In this condition of things, a judgment against the claim having *491 been voluntarily submitted to, without the request of the defendant, and with no agreement in reference to it on its part, and wholly without its instigation, there is no sense in which the action of either party can be considered a legal consideration for the action of the other.

It may be that the voluntary and unsolicited abandonment of all claim in law upon the defendant was an inducement to some members of the city council to vote for the order as a gratuity. But a gratuity offered for past services is not a contract, and cannot be enforced in law. It will be observed that we have discussed this subject as if a valid cause of action was set out in the declaration. We have assumed, but do not decide, that the declaration would be sufficient, had the evidence supported it.

Inasmuch, therefore, as the action cannot be sustained upon the first count as upon an order for money, nor upon the amended count as upon a contract in settlement and compromise of the plaintiff’s claim, it follows that there must be Judgment for the defendant.