Gale v. Town of Jamaica

39 Vt. 610 | Vt. | 1867

The opinion of the court was delivered by

Piekpoint, Ch. J.

It appears from the case, that in the fall of 1863, the President of the United States issued a proclamation calling for 300,000 men to serve in the armies of the United States. Under this proclamation, the Governor of this State, through the Adjutant General, ascertained the number of men which each town in the state was required to raise, according to the number of men therein subject to military duty, to make up the proportion of the 300,000 which this state was called upon to furnish, and issued General Order No. 2, therein specifying the number which each town was to raise to fill their quota under said call, and also the numbey of men, if any, that any town was deficient under the draft; and called upon the several towns to fill their quotas under the call, and also to make up their deficiency under the draft. The number assigned to the town of Jamaica (defendant) as their quota of the 300,000 was twenty-eight men, and the number of their deficiency under the draft was eleven men.

In order to obtain the requisite number of men, the town, at a meeting duly warned and holden on the 17th day of December, 1863, voted to raise and give a bounty of five hundred dollars to each volunteer to fill the quota of the town under the last call of the president for three hundred thousand men.

Prior to this time, the plaintiff, who was an inhabitant of Jamaica, had enlisted under a previous call of the president, and his term of service had nearly expired ; he had heard that the town was paying a bounty of §100. or $7.00 per month at the soldier’s election, under a vote of the town passed in November, 1863. He had also heard that the town contemplated offering a larger bounty for volunteers to fill their quota under the call for 300,000 men.

On the loth of December, 1863, he was serving in the field and stationed at Brandy Station, in Virginia, and on that day he re-enlisted, and on the 16th of December, was mustered in. At that time he did not credit himself to the quota of any town, but reserved the right to do so, at a future time. On or before the 20th of December, he learned that the town of Jamaica had offered a bounty of $500. for volunteers to fill its quota; he thereupon, on the said 20th day, had himself placed to the credit of said town, on their quota of the 300,000 men. He did not give the town notice of the fact until the 1st day of January thereafter, when he did notify them. It appears however, that the practice was, whep. a person was mustered in to the credit of any town, to immediately send notice thereof to the Adjutant General’s office, and from an inspection of the copy from his office, that is in the case, it appears that such notice of the plaintiff’s enlistment, and the town to which lie was to be credited, was sent to that office, and that he was then credited on the quota of the town, some days before their quota was actually filled.

As tbe town however, did not know of the fact, they proceeded to procure more men than was required to fill their quota of the 300,000 although they did not obtain any more than was necessary to fill that and their deficiency under the draft, including the plaintiff and the ten others who enlisted with him in the field.

The fact that the plaintiff was mustered in the day previous to the passage of the vote, we think can make no difference with respect to his right to recover. The defendant offered $500. to each volunteer to fill their quota, and it is wholly immaterial whether the volunteer enlists the day before or the day after the offer is made, so long as he stands in a position where he has the right to apply himself, and does apply himself upon their quota v^Jjere the application is made he comes within the offer ; he is then one who has volunteered to fill their quota, *and is passed to their credit as such.

But it is insisted that the plaintiff cannot recover, because he did not give notice to the town that he had enlisted to their credit. The town made a general and public offer, there are no conditions or limitations attached to it, except that the volunteer shall apply upon the quota. There is no requirement of notice, and no limitation as to time, or place of enlistment, or the person who shall enlist him. But if notice was necessary, all that can be claimed is, that reasonable notice should have been given, and what would be reasonable notice must depend upon the place where the plaintiff was, and the situation and business he was in ; he was in the enemy’s country and engaged in active service. In view of the distance, and the facilities and opportunity of the soldier so situated to communicate with his home, we think that ten days was not an unreasonable delay. Again the defendant had reason to expect that soldiers in the field would act upon their offer and enlist to their credit. The officers of the town knew that the term of enlistment of many of them was about to expire, and that the government was holding out strong inducements to them to re-enlist, and that they were doing so. They had also taken measures to ascertain, and knew that if any in the field did enlist to the credit of the town they would apply upon their quota. They were so situated that they could ascertain almost daily how their account, as to their quota, stood at the Adjutant General’s office; and it was from that source alone that reliable information could be obtained.

When these things are considered in connection with the fact that the plaintiff had actually caused himself to be credited upon the quota of the town in the Adjutant General’s office, before their quota was half filled, and several days before the requisite number was obtained, we think it cannot now be said that the officers were misled by any neglect on the part of the plaintiff. If there was want of due diligence on the part of any one in this respect, it was on the part of the officers of the town. Having reason to suppose that soldiers in the field would re-irdist to their credit, and upon the faith of the offer the town had made, and knowing that if they did, the earliest and only reliable information on the subject would’ be communicated to the Adjutant General’s office, they should have informed themselves as to how many and who were in fact credited upon, that quota to make up the twenty-eight, if they wished to avoid obtaining more than the requisite number.

This view of the subject renders it unnecessary for us to pass upon some of the questions discussed in the argument.

Judgment of the county court is reversed and judgment rendered for the plaintiff for the $500. and interest from the time the demand was made, to be computed by the clerk, and cost.