Estey v. Inhabitants of Westminster

Bigelow, C. J. This action cannot be maintained. The plaintiE voluntarily gave a sum of money for an object for which the town could not, at the time of the gift, lawfully have raised or paid money. There was, therefore, no legal obligation resting on the town to repay it, nor would an agreement to repay it, after it had been received and passed into the full possession of the town, have been supported by a sufiicient consideration. The consideration was past and executed. The case does not fall within the principle that a promise founded on an executed consideration will be held valid, if a precedent request to pay money is proved or can be implied from the circumstances. The payment of the money in the case at bar was purely voluntary, and no prior express request by the town in its corporate capacity is alleged or proved. Nor can any be implied, because the town had no right or authority at the time of the payment to make any such request. The law cannot imply a request on which to rest a promise, either express or implied, when it appears that there was no legal authority or right in the party sought to be charged to make any precedent request. The plaintiE advanced his money to the defendants not only without any request, but he gave it with a knowledge that they had no lega, authority to ask for it or to promise its repayment. In this mew, it is wholly immaterial [326] that the money was used in aid of the performance of a public duty which was devolved on the town. Admitting such to be the fact, it was a duty to be performed without any authority to raise or pay money or to make any request or promise on which a legal obligation could be founded. The subsequent statute, St. 1865, c. 152, by which towns were authorized to raise money to refund sums which had been contributed for bounties by individuals, does not affect this case. That statute imposed no duty on towns, but only conferred on them an authority, the exercise of which was left wholly discretionary. There is nothing in it which can be construed to give validity to a promise which, at common law, was wholly invalid. Exceptions overruled* Footnotes [*] A similar decision was made in the following case from Middlesex, argued at Boston in January 1868, before all the judges :