53 A. 797 | N.H. | 1902
The plaintiffs gave C no authority, either expressly or impliedly, to construct the sewer on their account. He did not act as their agent or representative. Under these circumstances, the commencement and prosecution of this action cannot be regarded as a ratification of his acts by the plaintiffs. One condition necessary for the application of the doctrine of ratification is lacking, namely, the quality of agency in the acts themselves. *576
Webb v. Cole,
It appears that the treasurer, in paying the bills for constructing the sewer, acted in his official capacity. The fact that the plaintiffs brought this action to recover the money so paid, and are prosecuting it, is sufficient evidence of their ratification of the payment. Corser v. Paul,
The plaintiffs in their brief ask that, in case the decision upon the foregoing points is adverse to there, they may be allowed to amend the action by substituting for themselves as plaintiffs the persons to whom the payments were made. The law would allow an amendment of this kind to be made if justice requires it. Fitch v. Nute,
The defendants say they are not liable because, never having *577
adopted the provisions of chapter 79, Public Statutes, relating to sewers, they had no power to construct the sewer in question. This position is untenable. Independently of those provisions, the defendants had power to construct sewers, so far at least they are needed to put and keep highways in suitable condition for public travel by carrying water and filth away from the highways. This power is incident to the power granted to towns to lay out, build, and repair highways. P. S., c. 40, s. 4, Cone v. Hartford,
The defendants further say they are not liable because they not authorize the building of the sewer, either by vote or by the action of their selectmen. But acceptance and use of the sewer by the defendants, with knowledge that they were expected to pay the cost of its construction, would be equivalent to original authorization in fixing their liability. Low v. Railroad,
The defendants finally say that they are not liable because of the plaintiffs' voluntary interference and payment of the bills for the construction of the sewer. As above shown, the plaintiffs cannot recover in their own name for the money which they have paid to the contractor and others. But the plaintiffs' request for leave to amend raises the question whether they are entitled to be subrogated to the rights of the parties whose bills they have paid, and may in that way prosecute the claims in the names of those parties as nominal plaintiffs. "The doctrine of subrogation is not applied for the mere stranger or volunteer, who has paid the debt of another, without any assignment or agreement for subrogation, being under no legal obligation to make the payment, and not being compelled to do so for the preservation of any rights or property of his own." Sheld. Sub, s. 240. This is the rule, notwithstanding "the right of subrogation does not rest upon contract or privity, but upon principles of natural justice and equity."
The plaintiffs, therefore, are not entitled to subrogation as a matter of right, nor unless there was an assignment to them by the creditors of the bills paid, or an agreement, express or implied, that the plaintiffs should be subrogated to the rights of the creditors. Such assignment or agreement may be made by parol. 2 Sto. Eq. Jur, s. 1047. The question then arises whether there was an understanding between the plaintiffs' treasurer and the creditors whom he paid, — whether their minds met upon the proposition, that the plaintiffs were purchasers of the bills paid, or were to take the place of the creditors and possess their rights against the defendants; or whether the understanding was that the bills were actually paid and discharged as against the defendants. "The question, as between payment and purchase, is one of fact rather than of law, to be settled by the evidence, largely presumptive, generally, in the case. It is a question of the intention of the parties." Wood v. Trust Co.,
There is evidence in the case having a tendency to show that the treasurer and creditors understood that the transactions between them were purchases of the bills, instead of payments. The fact that the money was paid as a matter of convenience to the creditors has this tendency. But this question of fact cannot be determined here. If the plaintiffs renew their motion for leave to amend in the superior court, this question, together with all other questions of fact bearing upon the exercise of the judicial discretion invoked by the motion, will arise and must be determined there. Upon the consideration of the motion it will be necessary to take into account the fact that the creditors' claims against the defendants are several and cannot be prosecuted jointly.
Exception overruled.
WALKER, J., did not sit: the others concurred.