Davenport v. Inhabitants of Hallowell

10 Me. 317 | Me. | 1833

The opinion of the Court was delivered by

Mellen C.

The object of the present action is, to recover damages against the defendants, for depriving the plaintiff of the benefits of a contract he alleges he had made with them, for the support of their poor, for a certain time, by refusing to permit him to execute the contract on his part; which he says is in violation of their promise. It appears that the Selectmen, who were also overseers of the poor of the town of Hallowell, made a contract with the plaintiff to support the poor of that town for the term of one year, commencing on the 13th of May, 1830, for the sum of nine hundred dollars. In order to ensure the faithful performance of the contract on the part of the plaintiff, the defendants required of him a bond, with sureties, which was accordingly furnished; but the obligation of the town to pay the nine hundred dollars, depended on the contract as above stated. The defendants contend, that the contract was made without any legal authority, and that, of course, they are not bourn! by it; and, if they are bound by it and are liable in damages to the plaintiff, such damages cannot be recovered in an action of assumpsit. This last objection we will consider in the first place. Notwithstanding the authorities which have been cited by the counsel for the defendants, seem at first view to sustain, or at least to countenance the objection, we apprehend that they do not decide the question. It is true that, where one party to a contract refuses to permit the other to perform it, and thus entitle himself to those advantages he might have realized from its performance, no action can be maintained against the refusing party on the contract as a basis, on which to recover the agreed compensation; but the remedy to recover damages for the injury sustained by such breach and refusal is by a special action — setting forth the circumstances particularly. In some cases this has been an action in nature of tort; in others, an action of assumpsit. In the case before us there seems to be nothing resembling a tort; the only act of the town has been a refusal on their part to permit the plaintiff to take the charge and superintendence of the poor, according to the agreement of the Selectmen, and by supporting them through the year, to earn the stipulated sum of nine hundred dollars.^ Independently of the contract of the Selectmen, the plaintiff could have no remedy against the town of any kind ; more than he could against any other town in the county. We perceive no objection to the maintenance of the present action, if, on the merits, the action is sustainable.

The next question is whether the town is bound by the contract made by the Selectmen and overseers. We do not, on this occasion, mean to go into an examination, as to the extent of the authority which overseers of the poor possess, merely in virtue of their'office, and independent of any express authority given to them by the town ; but shall confine ourselves to the inquiry whether the votes of the town authorized them to make the contract with the plaintiff. The 7th article in the warrant for calling the town meeting to be holden on the 15th of March, 1830, is in these words, viz.: “ To grant such sum or “ sums of money as may be thought necessary for the mainte- “ nance of the poor, and other necessary town charges, the pre- “ sent year.” For several preceding years the town had acted5 on the subject of the poor, under articles in the warrants, for the annual meetings, in precisely the same language. The 9th article was, “ to see what measures the town will take to provide “ a workhouse, or house' of correction for the reception, sup- “ port and employment of the idle and indigent, and such other “ persons as may by law be liable to be sent to such house for “ the purposes aforesaid, and for the superintendence of the “ same.” At the meeting, held under the said warrant and article, the town voted, “ that the Selectmen receive sealed pro- “ posáis for the maintenance of the poor for one year from the “ thirteenth day of May next.; and that they contract with some “ suitable person for that period, and report at the adjournment “ of this meeting.” Under this vote the Selectmen acted in making the contract; and, having made it, on the day of adjournment, the town voted, under the 7th article, to raise money for the support of the poor and other necessary town charges for the year. It is worthy of special notice, that though the defendants.now contend that, under the above article, the Selectmen had no right to make the contract in question, yet, after refusing to accept it, the town, at once proceeded to accept the proposal of Ebenezer Freeman. Surely, the town, in open meeting, had no more authority, by a vote, to close a contract with Freeman, under the authority of the above article, than the Selectmen had, as agents of the town and in behalf of it, to close a contract with Davenport. It shews the understanding of the town, and their construction of the article. This article may be considered as referring to, and authorizing the town to avail itself of the provisions contained in the first section of the act of February 28th, 1829. The language of. the section is, “ that “ the Selectmen of any town in this State, which has erected, “ or may hereafter erect a house of correction, or shall have ap- “ propriated any poor house for that purpose, may appoint a “ board of overseers of such house of correction, to consist of “ seven, five or three able and discreet persons, whose duty it “ shall be to appoint some suitable person for a master or keep- “ er thereof, except when the poor house has been or shall be apc: propriated for that purpose : in which case the overseer of the “ poor house shall be master of such house of correction,” &c. &c. The foregoing section, in connection with the ninth article in the warrant, we consider as having authorized the Selectmen to make the contract for, and in behalf of the town, (unless some of the other objections which have been urged are sustained) and thereby to constitute the house of Mr. Davenport, as the poor house for the year above-mentioned, and Davenport as the overseer of it, and master of it as the house of correction.

The next objection in the order of time is, that the Selectmen who made the contract, were not those intended by the ninth vote. One answer to this objection is, that the Selectmen for the time being answer to the description in the vote; and another is, that the persons who made the contract had been chosen Selectmen on the 15th of March preceding. Another objection is, that the condition of the bond given by Davenport is broader than the power given by the vote.' The answer to this is, that by the terms of the condition he was not bound to do more than the town would have been bound to do, provided no contract had been made with any one for the maintenance of the poor during the year in question ; nor, are we to presume, was the town, by the terms of the contract, bound to pay him a greater sum than would have been expended by the town, had no contract been made. Another objection is, that Mr. Davenport was not a suitable man for overseer of the poor house. The answer is, that by the vote, the Selectmen were constituted the judges of his suitableness. Another objection is, that towns have no right to make such a prospective contract. How then could they make such a contract with Freeman ? From necessity prospective contracts must be made, or the poor of our towns would be destitute of food, and raiment, and the common comforts of life. The last objection is, that the contract was never accepted by the town. One answer is, that by the terms of the vote, under the authority of which the contract was made, it did not require any acceptance, in order to make it obligatory oh the town. The Selectmen were clothed with full powers to make the contract; and it is evident that the object in view in requiring a report by them to the town, was, that it might be known what sum ought to be raised for the support of the poor for the year ensuing. Another answer is, that the town has not considered a vote of acceptance as essential. It is true, that in the years 1827, 1828 and 1829, votes of acceptance were passed ; but in the five next preceding years, no such votes were passed,- or deemed of any importance. We have thus examined and answered all the reasons and arguments urged in support of the motion for a new trial, and all thqt remains is, to render

Judgment on the verdict,