Haven v. Town of Ludlow

41 Vt. 418 | Vt. | 1868

The opinion of the court was delivered by

Pierpoint, C. J.

It appears from the exceptions in this case, that on the 21st day of December, 1863, the plaintiff was in the service of the United States as a soldier, and stationed at Brandy Station, Virginia; on that day he re-enlisted as a veteran volunteer ; that at the time he re-enlistod he was told by his captain that towns were paying large boxxnties, and that he could be set to the credit of any town that he should elect; that the plaintiff made his father, Parker A. Haven, his agent in the matter, and through him inquired what bounties the town of Ludlow (which was his place of residence) were paying or would pay; that his said agent talked with one of the selectmen of said town, who told him that if the plaintiff went to the credit of said town he would receive such pay as the town paid other soldiers, and the town would do as well as other small towns, and probably pay as high 'as $500 ; that the plaintiff enlisted in the expectation that the town would probably pay as high as $500. The plaintiff’s agent informed him of what the selectmen had said, and that the town were going to have a meeting to fix the amount that they would pay. The plaintiff thereupon had himself set to the credit of said town. The selectmen were notified of the re-enlistment of the plaintiff, and that he was credited to said Ludlow early in January, 1864, and he was applied upon their quota under the call of February, 1864, and before that call was filled.

On the 31st day of December, 1863, said town voted to pay a bounty of $500 to each volunteer to fill the quota of the town under the call of the president for 300000 men and the deficiency under the draft -of July, 1863. As the plaintiff did not apply upon the quota of the town to fill this call, he does not come within the terms of this vote, but it by no means follows that the ■ plaintiff would not be entitled to a bounty by reason of this vote, on account of the assurance by the selectmen that if he re-enlisted and went to the credit of the town, he would receive such pay as the town paid other soldiers. But it is not necessary to pass upon that question, because on the 11th day of March, 1865, and while the plaintiff was still in the service under the enlistment aforesaid, the town of Ludlow “ voted to pay to each re-enlisted veteran who has re-enlisted for three years and has received no town bounty, five hundred dollars; and to increase the bounty of those re-enlisted veterans who have received some bounty, to five hundred dollars, excepting commissioned officers, and those who have died leaving no families, and deserters.” This vote, it is conceded, includes the plaintiff.

We have here all the elements necessary to constitute a perfected valid contract between these parties. The plaintiff reenlisted and had himself credited to the town, virtually at the request of one of its selectmen, whose duty it was to see to the procuring of volunteers, and relying upon the assurance that he should be paid such bounty as the town paid to other soldiers, the amount to be subsequently fixed by the town. On the 11th of March, 1865, the town, by its vote, fixed the amount at $500, less the amount of bounty already received, which in the plaintiff’s case was $10. It is difficult to see how the case would have varied in principle if all these facts had transpired before the plaintiff enlisted, and then it is conceded the town would have been liable, as the power of the town under our “ enabling act” to raise money by taxation to procure the enlistment of volunteers to fill their quotas, is not denied, and the facts in this case furnish no basis on which to raise the question as to the power of the town to raise money by taxation, to be donated to the soldiers who had enlisted and been applied upon its quotas without any previous understanding upon the subject.

Treating this as a binding contract between the parties, it is obvious that the attempt of the town to evade their obligation, under it, by rescinding the vote of the 11th of March, 1865, was wholly inoperative.

The main principles governing this case were recognized and established in Cox v. Mt. Tabor, 41 Vt., 28.

But it is said, conceding the liability of the town, this action is prematurely brought, for the reason that at the time the suit was commenced the plaintiff’s term of service had not expired, and he might thereafter get a commission, die leaving no family, or desert, so as to come within the excepted class. It is to be observed that the language of the vote is in the present tense; the promise is “ to pay,” which, without any qualifying words, means to pay then, or on demand, not at some future time, or on the happening of some future event. The plaintiff made demand, and on refusal, brought his suit. His right of action was then clearly perfect. The language of the exceptions also would seem to be in the present tense, having reference to a then existing class of persons: “ commissioned officers,” “ those who have died leaving-no families,” not those who may hereafter 'die, “ and deserters.” What the effect would have been upon the plaintiff’s right to recover, if, before the trial and before the end of his term of service, he had received a commission, or died, or deserted, we have now no occasion to inquire, as it is conceded that at the time of the trial he had served out his full term, and none of these events had happened; so that Ms right of action was perfect when the suit was brought, and his right to recover perfect at the time of trial.

This case was tried by the court, and although the court below has not stated definitely what facts they found, yet as they rendered a judgment in favor of the plaintiff, we are to assume that they found such facts as the facts and evidence detailed seem clearly to establish, and which are necessary to sustain the judgment.

Judgment of the county court is affirmed.