Bowditch v. Chickering

C. Allen, J. The great reliance of the defendants is, that the payment by the plaintiffs of the taxes for 1882 is to be treated as a gift. The evidence upon which this claim is founded is substantially as follows. The witness Clapp testified that on November 1, 1877, “ Bowditch agreed that, if we [the defendants] would pay up the rent that was due, and make payments promptly hereafter, he would assume the taxes himself; that this proposal was not in consequence of any complaint made by the defendants, but voluntary on the part of Bowditch; ” and, on cross-examination, “ that he did not recollect that Bowditch said anything about the length of time for which he would assume the taxes, but that the witness understood it to be for the remainder of the term.” He also testified that thereafter the defendants received no tax bills, and no claim was made on them for the taxes until the correspondence of December, 1882,' and January, 1883. It appeared that the plaintiffs paid the taxes to the city for all the years from 1877 to 1882 inclusive. This evidence is insufficient to show a contract by the plaintiffs to pay the taxes for any certain length of time in the future, after the first year. Irrespectively of any question of consideration, the plaintiffs did not promise to pay the taxes during the remainder of the term, and the promise which was made would have been fulfilled by paying them for a single year. The understanding of the witness Clapp that the plaintiffs would assume the taxes for the remainder of the term is immaterial, and the language to which he testifies does not import any such undertaking, and there is nothing to show that Bowditch so understood it himself, or intended that the witness should so understand it. The correspondence in 1879 also goes far to show, if indeed it is not conclusive upon the point, that the parties did not consider that this agreement was a permanent one, or extended for any fixed length of time in the future. No claim was made by the defendants in their letter of October 10, 1879, that there was any such agreement. We have not, [288] therefore, to deal with the quéstion of the effect of a voluntary payment made by the plaintiffs in pursuance of a distinct understanding between them and the defendants, which was applicable to that very payment. The plaintiffs did not even undertake to pay the taxes for the defendants until they should give notice to the contrary. They were under no duty or obligation to give notice when their voluntary assumption of the payment of the taxes for the defendants would cease. The taxes were laid upon the owners of the property. As between the plaintiffs and the city, the plaintiffs were bound to pay them. By the covenant of the lease, the lessees agreed to pay the taxes, not to the city, but to the lessor. It was not a covenant of indemnity, but a covenant that the lessee would pay to the lessor whatever taxes should, during the term, be assessed upon the premises. A previous payment of the tax by the plaintiffs was not a condition of their right to recover the amount from the lessees. Wilkinson v. Libbey, 1 Allen, 375. Sargent v. Pray, 117 Mass. 267. Armory v. Melvin, 112 Mass. 83. Trinity Church v. Higgins, 48 N. Y. 532. If the plaintiffs had not paid the taxes in question to the city, there would be no question of their right to recover the amount from the defendants. The agreement of the plaintiffs, whatever extent of time may be given to it, was wholly voluntary on their part, and rested on no consideration. The defendants agreed to do nothing which they were not already bound to do. The plaintiffs could not be held at law or in equity to fulfil a promise of this description. See Weber v. Couch, 134 Mass. 26; Lathrop v. Page, 129 Mass. 19; Potter v. Creen, 6 Allen, 442; Harriman v. Harriman, 12 Gray, 341; Kidder v. Kidder, 33 Penn. St. 268; In re Campbell's estate, 7 Penn. St. 100; 1 Smith’s Lead. Cas. (7th Am. ed.) 444, 464, 469, note to Cumber v. Wane ; Met. Con. 191, 192. This question has recently undergone great discussion in England, and it has been held in the House of Lords that an agreement between a judgment debtor and creditor that, in consideration of the debtor’s paying down a part of the judgment debt and costs, and on condition of his paying the rest by instalments, the creditor would not take any proceedings on the judgment, is nudum pactum, and does not prevent the creditor, after the whole principal of the debt and costs have been paid, [289] from enforcing payment of the interest on the judgment. Foakes v. Beer, 9 App. Cas. 605. So, also, in Crowley v. Vitty, 7 Exch. 319, where a lease stipulated for rent at 20s. a week, and during the continuance of the tenancy it was verbally agreed between the lessors and the lessee that the latter should hold the premises at the weekly rental of 16s., which was subsequently paid, it was held that there was nothing to bind the lessors to accept the reduced rent, and that the transaction really amounted to nothing more than an indulgence on the part of the landlord, which might be put an end to at any time. The question, therefore, comes back to this, whether by the payment of the taxes for 1882 by the plaintiffs to the city, under the circumstances stated, there was evidence of a completed gift of that amount to the defendants. There was no accounting afterwards between the parties which took any notice of this payment. No subsequent mention of it was made between them, until the plaintiffs’ letter of December 29, 1882, which certainly contains no implication against their right to recover the amount. Nothing passed between the parties after-wards which could convert the payment into a gift, unless it was a gift at the time when made. The defendants took no action upon the faith of it which could raise against the plaintiffs an estoppel or an equity of which courts can take notice. It was a payment, as has been seen, which the plaintiffs were legally bound to make to the city. They had made no promise to the defendants which covered it. The defendants may well have had a hope, or even an expectation, that the plaintiffs would continue the payments for their benefit. But the- trouble with their argument is, that they had no contract to that effect, and they got nothing afterwards which would amount to a mutual recognition that the payment should be considered as an executed gift to them. It may well be that a payment made in pursuance of a distinct understanding between the parties, covering the particular transaction, or even a subsequent understanding to that effect, may take effect as a gift; that it is not necessary for the money to pass through the hands of the donee; and that such a payment is the same, in legal effect, as if the money passed directly through the donee’s hands. These questions we need not here specially consider. In the present [290] case, the evidence fails to warrant a finding that the possession or custody of the money was conferred on the defendants by the plaintiffs, actually or constructively, or that the payment was made with the intention of perfecting a gift at the time. In these particulars, the case is easily distinguishable from Strong v. Bird, L. R. 18 Eq. 315, Yeomans v. Williams, L. R. 1 Eq. 184, and Waller v. Andrews, 3 M. & W. 312, which are much relied on by the defendants. For the reasons stated, it becomes unnecessary to consider the other questions argued by the parties. Exceptions overruled.