Clay v. Wright, 44 Vt. 538

Clay v. Wright

44 Vt. 538 | Vt. | 1872

The opinion of the court was delivered by

Pierpoint, Ch. J.

It appears from the report of the referee, that on the 16th of March, 1869, the plaintiff brought a suit against the town of Cavendish, claiming damages for an injury occasioned by the insufficiency of a highway in said town.

The defendant at this time was the agent of the town to' “ prosecute and defend” suits when such town was a party. The plaintiff’s suit against said town was brought before one A. E. Heald, a justice of the peace, and the return day was the 29th day of April, 1869.- Some time before the 12th day of April, the defendant went to Chester and saw the plaintiff on the subject of settling said suit. On that occasion the plaintiff offered to take $60 in settlement of his claim. This offer the defendant did not then *542accept. At this time the plaintiff knew that the defendant was the agent of the town.

On the 12th of April the defendant wrote a letter to the plaintiff offering him $50 and cost (not exceeding $5,) to settle said suit. To this the plaintiff replied repeating his former offer to take $60. On the 26th of April the defendant wrote another letter to the plaintiff accepting his offer. On the receipt of this letter the plaintiff notified the justice that the suit was withdrawn, and that he need not go to the place of court to try the same. On the court day Colonel Seaver, one of the selectmen of the town, appeared to defend the suit. The plaintiff there claimed that the matter was settled. Seaver claimed it was not, and that Wright had no authority to settle it. Finally an entry was made on the writ that the case was continued to the 1st day of May, 1869. This was signed by Seaver and the justice. This was assented to by the plaintiff on the representation of the defendant that the matter would probably be settled.

On the 1st day of May, the plaintiff appeared and entered a nonsuit, and this suit is brought to recover the $60 of the defendant, based upon the promise to pay contained in the defendant’s letter of the 26th of April, 1869.

It is conceded that the defendant, as town agent, had no authority to make any promise to pay the plaintiff’s claim that would be binding upon the town.

It cannot be said in this case that the defendant bound himself by the promise, because he failed thereby to bind his principal, for the plaintiff knew he was the town agent, and was bound to know that he had no legal authority to do so, and would not have boon justified in relying upon such an undertaking, or entertaining any expectation that the town was thereby bound. If then the plaintiff is entitled to recover in this case, it must be upon the ground that the defendant’s promise was a personal undertaking on his part to pay the $60. The report shows that the plaintiff understood it to be and relied upon it as a personal obligation on the part of the defendant. Was ho justified in so doing ?

The defendant commences his letter by saying: “ I have concluded I would accept your offer and pay you the sixty dollars, *543rather than have any more trouble in the matter. * * Please withdraw the suit or let it go. * * I shall be at home Saturday and will see that you have the money. Of course this will be sufficient guarantee that I shall pay it. Please write me by Wednesday’s mail.” The letter was not received until the night before or the morning of the said court day, and after the Wednesday referred to. Of course the request to write could not be complied with, but the promise was not made conditional upon that.

This we think was clearly a personal undertaking; the language used is inconsistent with any other idea, and could not have been used by the defendant with any other intent than that of making himself personally liable to pay the money. The plaintiff so understood it, and had the right so to understand it, and having acted upon it and abandoned his suit against the town, is now entitled to recover.

Judgment affirmed.