Glidden v. Town of Unity

33 N.H. 571 | N.H. | 1856

Sawter, J.

The first question in the case arises upon the objection taken by the defendants at the trial to the admissibility of one of the answers contained in the deposition of Betsey (Hidden. The answex* is a statement of the witness, of what was said and done by one of the selectmen of the town subsequently to the making of the contract for the board of the pauper, relative to the bill of the physician for his medical services in attending upon the pauper. It was a material inquiry upon the trial, whether the town agreed to pay the plaintiff for the expense which he might incur by reason of the medical attendance necessary for the pauper, as a claim distinct from that for the board. Thus, to contract for the required medical attendance was as clearly within the scope of the authority of the selectmen, acting in the capacity of overseers of the poor, as' was their agreement to pay for the board of the pauper, and such contract need not be proved by any direct evidence of the making of it. In all American courts, towns and other corporations are now to be considered as subject to the same presumptions and implications arising from their corporate acts or the acts of their agents, within the scope of them authority, without either vote, deed or writing, as in the case of natural persons. Yide authorities collected in 2 Kent’s Com. 290, and Ang. & Am. on Corp. 212. They may be bound by the express promise of them agents or officers, acting within the scope of their authority, or such promise may be implied against the corporation, from the acts of its agents within their authority, as in the case of natural persons. 8 Pick. 178 ; 2 Mason 31.

The acts and doings of the selectmen as overseers of the poor, touching any of the matters falling within the scope of their official duty, may be proved as evidence against the town, and from them may be drawn all the just inferences against the town which would arise against a party so acting in reference to his private affairs.

It is the duty of the selectmen, as such, to attend to the prudential affairs of the town. In the discharge of this duty a great variety of acts are to be performed of a mere ministerial character, many of which are such that when performed by one of the board, the assent and concurrence of the others are to be presumed. Lee v. Deerfield, 8 N. H. 290; Woods v. Dennett, 9 N. H. 55. In transacting the business of the town, much that is required to be done by them is of a mere formal character, requiring no deliberation; nothing like the exercise of the combined judgment of the board, and consequently involving no necessity for conference or discussion, and which may be done as well for the interests of the town by one as by the joint action of all. In such case, to require that there should be the actual concurrence of all or of a majority before proceedings are had, or their express assent subsequently given, to render them valid and binding on the town, would necessarily be attended with great inconvenience and without the slightest advantage. The necessary and proper measures taken to prepare for the adjustment of a claim made by the town against another, for the support of .a pauper having his settlement in such other town, would be of that character. In all the mere formal arrangements necessary to be made in order to put the claim in the way of adjustment, not the slightest necessity can ordinarily exist for conference and deliberation among the selectmen; and it would be idle to hold that when one of the selectmen performs such acts, the express concurrence of the others must be shown, to give them validity as the acts of the town. If the defendant town had a claim against the town of Littleton for supplies and medical attendance furnished to the pauper, it was the duty of the selectmen to procure the account, put it in proper form, and take measures, by a notice or otherwise, for collecting the amount due upon it. In doing these mere formal things, however, there was no necessity for or propriety in the united action of all or a majority of the board. They might and should be done by one alone. The concurrence of the others is to be presumed. In doing thus the selectman would be acting within the scope of his authority, as an agent of the town. It would consequently be the act of the town, and all the legitimate inferences might be drawn from it, against the town, which would arise in the like case against an individual thus acting on his private account. If the act done, and the accompanying declarations explanatory of it, were of such a character as to warrant the inference that an agreement had been previously made by the selectmen in behalf of the town, which by their office they had the power to make, then the act, and the accompanying declarations as a part of the res gestee, would be competent evidence of such agreement, and it would be evidence, not in the nature of an admission by the selectmen, of the past fact that an agreement had been made, but as a proceeding naturally and ordinarily following such agreement, and most satisfactorily and consistently accounted for by such previous agreement, and therefore laying the foundation for an inference that such agreement had been made.

Now this we understand to be precisely the character of the proceeding of Perkins, one of the selectmen, in calling upon the plaintiff for the doctor’s bill, and his accompanying declaration of the purpose for which it was desired, “ to be sent to Littleton with the other bill, before the ninety days were out.” It was a proceeding, on its face, appearing to be done in the course of official duty ; the taking necessary and proper measures towards collecting an account claimed to be due to his town from Little-ton, for medical attendance upon a pauper having his settlement in Littleton. The concurrence of the other selectmen in his taking these measures is to be presumed. They were of a character to indicate more or less clearly that the plaintiff had some interest in the account, or at least that he had some connection with it.

That this has some tendency to show an agreement between the selectmen and the plaintiff, in relation to the medical attendance, we think is clear. What its weight might be is immaterial, if it has a legal tendency that way, and this we think it had.

Another question raised in the case is, as to the effect and extent of the proviso or condition contained in the indentures between the plaintiff and the overseer of the poor, that the minor should continue to be a healthy boy, and a faithful servant during his minority. There can be no doubt that this condition is one upon which all the covenants on the part of the plaintiff are made to depend. This question, however, has been decided in this case when before the court, upon a former occasion, and is not now open. 10 Foster 104. We are satisfied with the views then expressed, and have no doubt of the correctness of the decision. The nature and circumstances of the contract clearly indicate that it was intended and understood by the parties as applying to the entire contract, and not to the covenant alone which immediately preceded it.

The contingency having arisen upon which the plaintiff had the right to put an end to the contract, and he having elected to do so, it is clear that he was not under obligation to maintain the pauper during the time the supplies were furnished which are the subject of this suit.

The remaining question is that arising upon an alleged variance between the agreement laid in the declaration and that offered in evidence. The agreement is alleged under a videlicet to have been made October 5,1850. The evidence shows it to have been made the last of October, or first of November. Whether there is or not such variance in this particular as amounts to a legal exception, depends upon the question whether the time of making the contract is material, as being of the essence of the agreement, and constituting one of its material elements. The agreement of the town is to pay a stipulated price for the first two weeks, another stipulated price for the next two weeks, and another still for the subsequent time. The agreement of the plaintiff is to board and support the pauper from the time of making the contract, at those prices. The contract takes effect and is operative from the time of making it, whatever may be the day on which it was made. It is essentially the same in all particulars, whether made on one day or another. The whole of the substance of it would be shown by proof that it was agreed as thus stipulated, without proof of the particular day on which it was made. And the plaintiff’s claim and right to recover would fully appear by proof that he commenced to fulfil his part of it on the day it was made, without showing when that day was, by then furnishing the board and support, and that he continued to do so from the time of making the agreement for a certain number of weeks. The contract would be the same in substance, whether laid on the first or the last day of the month; namely, a contract by the town to pay the price stipulated for the board and support, from the time of making it, irrespective of the particular day of the month on which it was made. The exceptions upon all the points must be overruled and Judgment rendered on the verdict.