Slack v. Town of Norwich

Barrett, J. The plaintiff seeks to recover for taxes paid by him from 1847 to 1854, inclusive, assessed on fifty acres of school lot, so called, which the defendant concedes was not by law subject to assessment and taxation. Upon the issue formed upon the replication of a new promise to a plea of the statute of limitations, the plaintiff introduced in evidence a copy of the record of a vote passed at an adjourned March meeting of said town, in the year 1855, referring this matter of excessive taxation to the selectmen, no question being made as to its admissibility, or as to the instructions given to the jury in respect to it. He also offered to prove by parol that, at the same meeting, a motion was made and passed referring this matter to the selectmen, with specific instructions to find what was due Mr. Slack, and draw an order in his favor on the treasury for that amount: which instructions were not contained in the vote as shown by said record. [822] This offer was objected to and rejected, to which rejection the defendant excepted. As the case does not 'show that the vote thus offered to be proved was not recorded, it would seem, upon familiar principles, that this exception cannot be sustained. If it was recorded, that record was the only legitimate evidence oí the vote. Parol evidence would not be admissible to prove the vote, till it had been shown that such record was lost or destroj’od. But for another reason, in our opinion, that evidence was properly excluded. The plaintiff had already given record evidence of a vote which, in the absence of proof to the contrary, would be presumed to be the only vote of that meeting of a similar character on that subject. The parol evidence was not offered for the purpose of showing that another vote was passed, but that the vote of which the record was made was in fact different from what the record shows it, that instead of being a vote of naked reference, it was really a vote of reference, loith the special instructions that were offered to be proved by the parol evidence. We are not referred to, nor are we cognizant of any principle or rule of law that would permit record evidence to be thus varied and added to by parol. The case of Hutchinson v. Pratt et al., 11 Vt. 421, hardly countenances what is claimed in the present case. The admission of parol evidence in that case was put exclusively on the ground that there was no record of the alleged vote. In this case the plaintiff himself shows that there is a record of the vote, but he claims that said record is inaccurate, and offers the parol evidence for the purpose of superseding the record by showing the vote actually passed to have been different from what the record states. In order to have found support in the case cited, the plaintiff should have shown to the court that there was no record of that vote to be found, instead of producing and giving a record of it in evidence. The letter of the selectmen^ (marked A) written in December, 1858, does not profess to recognize any lawful claim in favor of the plaintiff. It merely proposes specific terms for the compromise of this suit, and fixes a definite time within which the proposition would be open for acceptance, closing thus : “ If we hear nothing from you on the subject we shall take it for granted that [823] you do not accept, and this proposition to settle will go for nothing,” Iuferentially we conclude that the selectmen did not hear anything in the character of an acceptance of the proposition, and so by its terms it was to go for nothing as to the subject matter to which it related. As the letter cannot be regarded as recognizing the existence of the debt claimed, accompanied with a willingness to remain liable for its payment, it cannot be treated as evidence of a new promise in any view. It hence becomes needless, in disposing of the exception taken to the instructions in the charge as to said letter, to discuss or decide whether the selectmen should be regarded as so the-agents of the town as to bind it by an acknowledgment or a new promise in avoidance of the statute of limitations. The paper marked B, without date, signed only by H. Burton, “ for the selectmen,” falls under the same rule and reason as the letter of the selectmen, above discussed. The view, in'which we are disposing of the exception taken to the charge touching these two papers, seems to be fully sustained by the case of Aldrich v. Morse, 28 Vt. 642. As it appears that the verdict for the plaintiff was made up on the basis of the average valuation of all the land for which the plaintiff was assessed, there is no occasion to discuss the propriety of admitting evidence as to the value of said fifty acres as compared with the other part of the real estate. As to the only other point of exception, it was expressly decided in The Vt. Central R. R. Co. v. Burlington, 28 Vt. 193, that recovery could be had of the town only for what had been paid as town taxes. The case of Henry v. Chester, 15 Vt., goes no further. It was only for the taxes that had gone into the town treasury that he was held entitled to-recover. It would seem that the counsel citing that case is under a misapprehension as to the force and application of the language of the opinion, which will be corrected by recurring to the point made by counsel in the brief, to which said language of the court was addressed. The point was, “ that if the list was void, in the action for money had and received, the plaintiff should recover [824] only what the defendant conld not equitably retain, that is, the part only which he should not have paid.” Upon this it was held that, the list being void, the town bad no lawful right to hold any money collected by way of taxes raised on said list, having reference only to the money that had gone as taxes into the town treasury. As we see no error in the case, the judgment is affirmed.