"Any town or county furnishing any assistance to any person within six years preceding his death shall be entitled to recover from the estate of such person the sum or sums paid out for such assistance . . . . provided he leaves no widow or minor children living at his decease." Laws 1903, c. 42, s. 1.
This statute is entitled, "An act to reimburse the town or county for aid furnished paupers." Recovery thereunder is necessarily limited to sums expended by the plaintiff under its obligation to relieve and maintain a person "poor and unable to maintain himself." P.S., c. 83, s. 1.
Whether the town has expended any sums for the support of the deceased within six years preceding his death and whether the sums so expended, if any, were spent in performance of the town's statutory obligation to support paupers within its limits are questions of fact. In the instant case, it is found that the assistance furnished by the town was in performance of an agreement made by two of the selectmen to furnish support as the consideration of a conveyance of land to the town. It is immaterial whether the selectmen had original authority to make the agreement or whether ratification of the contract by the town is sufficiently shown. The action is not to enforce the contract but by the town under the statute. The fact upon which the statutory right to recover depends is found against the plaintiff and the action fails.
It is found that the intestate after becoming possessed of property told several persons that he should, and one of the selectmen that he would, repay the town what it had expended on his account. The plaintiff claims to recover upon this statement as upon an express promise. But there was no consideration for the promise and the town has taken no action in reliance thereon. The evidence at the most discloses an unexecuted intention to make a gift to the town which cannot serve as the foundation of an action of assumpsit. Although the contract proved unprofitable to the town it has retained the proceeds and executed it on its part. The intestate's heirs could not set such a contract aside if it resulted advantageously for the town, (Amazeen v. Newcastle, 76 N.H. 250); the town recognizing the contract cannot maintain an action for a return of part of the consideration paid. As Garland was under no legal obligation to return any part of the consideration, his promises to do so made without controversy or claim on the part of the town did not render him liable. If after Garland came into property the town had claimed the contract was ultra vires, had offered to restore the land, *Page 110 and threatened suit to recover the consideration paid, the promise of Garland to pay in avoidance of litigation might have been enforceable but no such situation was ever presented.
Whether the facts authorize a proceeding under s. 27, c. 191, P.S. is immaterial since the plaintiff on the facts found fails upon the merits.
Judgment for the defendant.
All concurred.