Howlett v. Inhabitants of Holland

Bigelow, J*

1. The ruling of the court as to the effect of the tender was in conformity with the principles laid down in Hubbard v. Knous, 7 Cush. 557. The declaration was not upon a special contract, to the proof of which the plaintiff would be held strictly at the trial; but it was in the nature of indebitatus assumpsit on the account annexed: under which the plaintiff might prove any sum to be due from the defendants for the board of the pauper, less than the amount charged for any fraction of a year. But if this were not so, and the account annexed could be taken to be so far a part of the declaration as to require strict proof of the facts therein stated, in order to maintain the action, the effect of the tender would not be to preclude the ground of defence now relied on. The account does not state with sufficient certainty that there was any contract to pay for the board of the pauper for an entire year, whether he should be actually boarded for the whole year, or not. The rate per week was fixed by the contract, and was not in dispute between the parties. To that extent, the defendants admitted the plaintiff’s claim. The contention was only as to the liability of the defendants beyond the time that the pauper actually resided in the plaintiff’s family.

2. The only evidence of the contract between the parties was the vote of the town, duly recorded, passed at the meeting held on the 8th of April 1852, pursuant to an appropriate article in the warrant. It was under this vote that the plaintiff received the pauper into his care and service. The agreement being in writing, and unambiguous in its terms, no parol evidence or proof of usage was competent to explain or vary its meaning, or to control its construction or legal effect. The evidence offered by the plaintiff was rightly rejected.

Exceptions overruled.

* The remainder of the cases for this term (except where otherwise stated) were argued at Boston in January 1857 before Justices Dewey, Metcalf, Bigo tow and Thomas.