City of Calais v. Whidden

| Me. | Jul 1, 1874

Appleton, C. J.

The question presented for our determination is whether upon the evidence offered by the plaintiffs irrespective of that in the defence, they are entitled to recover.

The plaintiff town having claims against the state for reimbursement, the legislature by resolve authorized the same to be audited by the governor and council and an order to be drawn for the amount found due. The defendant, who was then the city solicitor of the plaintiff’s and their representative in the legislature, appeared before the auditing board to procure the allowance of the plaintiff’s claims. They were allowed to the amount of $1304.03, for which sum the state treasurer drew an order on the Calais National Bank in favor of the defendant, who indorsed the same and received the amount.

The defendant, then, had the funds of the plaintiff city in his hands, for which he was bound to account. He received the order as their agent to pay to them. The money received upon the order was the plaintiff’s, and this action is brought to recover the same.

I. It is objected, that the action cannot be maintained, because there was no previous demand. But where one is proved to have money of the plaintiffs in his hands, which, ex cequo el bono, he ought to refund or pay over, the law will presume he promised so to do and the jury are bound to find accordingly. Being under legal and moral obligation to pay, the law implies a promise so to do. No demand therefore was necessary. Stetson v. Howe, 31 Maine, 353; Hall v. Marston, 17 Mass., 575.

If a demand was necessary, there is evidence tending to show that a demand was made on the defendant and that he was notified that a suit would be commenced in case of a failure to pay.

II. The authority to commence the suit is denied. But the appearance of the plaintiffs’ attorney has not been called for seasonably. If it had been, it appears by record evidence, that the plaintiffs directed by vote the institution of this suit, and nothing indicates on their part any desire that its prosecution should cease.

The plaintiffs, therefore, have made out a prima facie case. But certain questions have been raised which it is expedient now to determine.

The defendant, whether as the representative of the plaintiff city, or as their solicitor, was under no official obligation to attend to the prosecution or to aid in the adjustment of their claims against the state for reimbursement. For his services in this behalf he is entitled to a just and reasonable compensation.

The city treasurer, as such, had no authority to agree upon the rate of compensation for extra official service, and nothing is shown from the records of the plaintiff corporation that he was in any way authorized to make any agreement such as is alleged. Its validity would be established only by subsequent ratification, if that can be shown. Action to stand for trial.

Cutting, "Walton, Barrows, Danforth and Peters, JJ., concurred.