Gates v. Thatcher

11 Minn. 204 | Minn. | 1866

Lead Opinion

*216 By the Court

McMillan, J.

There is no doubt, from the evidence in this case, that the defendant supposed he was acting officially in the transaction upon which this action is based, and intended to act in his official character as a member of the board of enrollment; and he here relies upon his official character in the transaction as a defense to the action. But the court below did not sustain this defense. Upon this point the court charged the jury as follows : “ The rule undoubtedly is, that a person acting as a public agent cannot be holden personally ; but the defendant, in receiving the money in question, was not acting as a public officer. It was no part of the duties of the board oí enrollment to receive substitute bounties; the laws under which these boards were constituted provided for no such action on their part, although the Secretary oí War, from very proper motives, had undertaken to regulate these matters, with a view to the protection of the government and the substitute ; that the orders of the Provost Marshal in reference to these moneys were therefore extra-official; and the defendant, in acting under them, was not acting as a public officer, but as an individual; that the orders did not protect the defendant, unless it was shown that the plaintiff contracted with knowledge of them.” It would seem to be conceded that the ground upon which the defense set up is rejected, is the want of authority in the Secretary of War to authorize, through his subordinates, or establish these regulations, as to substitute bounties. The existence in fact of orders in terms covering the action of the defendant as a member of the board of enrollment, is admitted, but the legal validity of these orders is denied. We shall therefore consider the matter in this light.

By the eighth section of the act of congress, approved March 3, 1863, (Stat. at Large 1862-3, page †32,) a board of enrollment is created for each enrollment district, composed of the Provost Marshal, as president, and two other persons, to be appointed by the President of the United States, one of *217whom shall be a licensed and practicing physician and surgeon. The duties of the board are defined in various sections of this act, and an amendatory act, approved February 21, 1861. The fifth section of the act of congress approved February 21, 1861, (Stat. at Large 1863-4, page 6,) provides, Inter alia, that any person drafted into the military service of the United States may, before the time fixed for his appearance for duty -at the draft rendezvous, furnish an acceptable substitute, subject to such rules and regulations as may be prescribed by the Secretary of War. Clearly, we think, by this provision, the Secretary of War may prescribe any regulations necessary or reasonable to protect either the government, the substitute, or the principal. The regulation in this instance accomplishes all these objects; it secures a willing recruit, and protects the principal and substitute from any opportunity of defrauding or deceiving each other, and as the board of enrollment are to perform the duties attending the reception of the substitute into, and the discharge of the principal from the service of the United States, the regulations of the Secretary of War, conveyed to them by orders, are obligatory upon them. If, therefore, this money was deposited with the defendant as a member of the board of enrollment, to be paid to the minor plaintiff upon his being mustered into the service of the United States as a substitute for a drafted man, the board being authorized by the War Department so to receive it, the plaintiff never having been so mustered in, and the defendant having paid over the money to Brousseaux, in obedience to orders emanating from the Secretary of War, the defendant is not liable. But it is contended by the plaintiff that the agreement between him and Brousseaux was, that he should have the money upon being sworn in. If this was the agreement, the defendant would not be protected by the order. Upon the trial, the court admitted testimony as to the agreement between the plaintiff and Brousseaux, made in the absence of the defendant, to which the defendant objected and excepted. We think *218this objection is well taken, and the exception must be sustained. The jury, after being out some time, having retired to consider of their verdict, returned into court and desired to know what was the evidence as to the agreement between the parties at the time the money was deposited with defendant. The court thereupon repeated the testimony as to what occurred at the time the money was deposited; the court was then requested by plaintiff’s counsel to call the attention of the jury to the testimony as to what • occurred between plaintiff and Brousseaux before the deposit with defendant; whereupon, th$ court referred to that testimony, and stated to the jury that what occurred then could not be considered as binding upon the defendant, unless the knowledge of it was brought home to him. This was doubtless correct; but the testimony had already gone to the jury under the defendant’s exception, and we are unable1 to discern anything bringing the agreement between the plaintiff and Brousseaux to defendant’s notice, nor is it urged by the plaintiff’s counsel on that ground. It is evident from the inquiry of the jury upon their return into court, that they hesitated upon that part of the agreement, and we feel strongly inclined to think that the defendant was seriously injured by the admission of the testimony objected to.

Order denying a new trial reversed, and new trial granted.





Concurrence Opinion

"Wilson, Oh. J.-

I concur in the view that the order in this case denying the motion for a new trial should be reversed.

It is not necessary to determine, whether the ruling of the court below receiving parol evidence to show that the plaintiff was sworn into the service was erroneous, as such ruling was not excepted to.

The principal question to be decided is, what was the contract between the plaintiff and defendant ? If the money was delivered to the defendant, to be held absolutely and unconditionally for the plaintiff, then the defense set up is insufficient.

*219But if the contract was that the money should be held by defendant, to be paid when the plaintiff was mustered into the service as a substitute for some principal, or on any other conditions, then it is incumbent on the plaintiff as a condition precedent to his right of recovery, to show that the contract has been performed, and the conditions complied with on his part..

■ The evidence offered, both on part of plaintiff and defendant, conclusively shows that the money was not taken by the defendant to beheld absolutely and unconditionally, subject to the plaintiff’s order.

The remark made by defendant to the plaintiff on receipt of said money, that the plaintiff could, if he needed it, have $50 or $100, shows that it was well understood that defendant had a right to hold the whole, or at least a part of said money, as against the plaintiff.

• The plaintiff’s father, who seems to have acted for him in the whole transaction, testifies : “ The reason why the money was not paid over was, because some had slipped, the guard and escaped. The understanding was, that the boy should receive the money when he handed the receipt to Col. Morgan, at the Port.”

The evidence in the case, we think, conclusively shows that the plaintiff well knew that this money was received by the defendant in accordance with the rules of the office, and that it should be paid over in accordance with said rules.

In accordance with the rules of the office, no money was to be paid to substitutes until they were mustered into the service; and the plaintiff in this case never having been mustered, did not become entitled to said money. The evidence, therefore, did not justify the verdict, and a new trial should be granted.

The court below received evidence showing the statements of Brousseaux (substitute broker) to plaintiff, not made in defendant’s presence. These statements, we think, were cal*220culated to, and we have no doubt did, affect the mind of the jury in deliberating on their verdict in this case. This evidence was not competent. In no view whatever could that evidence serve to enlighten the jury as to the contract between the plaintiff and defendant.

The order appealed from, I think, therefore, should be reversed.





Concurrence Opinion

Berry, J.

I concur in each of the opinions filed in this case.