81 Me. 380 | Me. | 1889
The material facts in this ease are few. The plaintiff asked one J. M. Skinner, then chairman of the board of selectmen of the town of St. Albans, if the town was in need of money, and whether the selectmen were authorized to hire money in behalf of the town; and, having received affirmative answers,
Tbe action is in form an action on tbe case for deceit. The plaintiff charges the defendant with having falsely and fraudulently represented to him that he and Skinner had authority to hire money in behalf of the town, and to execute valid orders therefor, when in truth and in fact they had no such authority.
Can the action bo sustained? We think not. We have examined the authorities with care, and given to the question much thought, and we can find no satisfactory ground on which a decision in favor of the plaintiff can rest. We assume that Skinner practiced a fraud upon the plaintiff, but we can find mr rule of law which, upon the facts established by tbe evidence, will make the defendant responsible for that fraud. The defendant made no false representations to the plaintiff. Ho had no knowledge of the transaction, or any connection with it whatever,, except that he had signed a blank order for another and a different purpose, and Skinner, without his knowledge or consent, used the blank on which to write the plaintiff’s order.
The argument is pressed upon us that Skinner ought to be regarded as the defendant’s agent; but we can find no rational, ground for so regarding him. Selectmen are not the agents of each other. Between them the relation of principal and agent does not and can not exist. Their authority is not transferable. An attempt to transfer it would he null and void. One selectman can not possibly exercise the authority of another. The law does not allow it. And the plaintiff is chargeable witb notice of this fact
It is urged that the defendant was careless in signing a blank •■order and leaving it with SMnner. Perhaps he was. It can now ■be seen that it was dangerous to do so. But the defendant was not more careless in trusting Skinner with a blank order than the plaintiff was in trusting Mm with money when no other member • of the board was present to witness or sanction the transaction. And in this particular they are in pari delicto. And if it be true, ■ as counsel urge, that Skinner’s fraud would not have been possible but for the defendant’s negligence, it is equally true that ■the fraud would not have been possible but for the plaintiff’s negligence. Both trusted him and both were deceived by Mm. But negligence alone, if proved, will not support the action. The gist • of the action is the alleged fraud and deceit, and, unless these are proved, the action is not maintained. Tryon v. Whitmarsh, 1 Met. 1; Kingsbury v. Taylor, 29 Maine, 508. And very clearly .the allegations of fraud and deceit on the part of the defendant ■are not proved. Judgment for defendant.