Hickok v. Town of Shelburne

41 Vt. 409 | Vt. | 1868

The opinion of the court was delivered by

Peout, J.

The result of this cause in this court depends mainly, independent of the question as to the sufficiency of the-declaration, upon the construction of the act of 1862, (No. 38). Were tbe controversy between the substitute furnished by the plaintiff and the town, the enlistment, credit and application upon its assigned quota, and vote of July 25, 1864, upon the authority of repeated decisions, would fix the liability of the town, and it could not be avoided. Seymour v. Marlboro, 40 Vt., 171; Cox v. Mt. Tabor, decided at the last term of this court in Windsor county. The present case is distinguishable from those only by the fact that the plaintiff was liable to draft and furnished a substitute, the agents of the town not only having a knowledge of, but requesting the plaintiff to procure one, assuring and promising him that they would do what was right about it. The plaintiff’s substitute, as contemplated by him and the selectmen, was credited to the town and counted upon its quota, so that the town was in fact relieved in respect to the draft and military service to the same degree it would have been had the substitute enlisted strictly as a volunteer, as in legal effect he was. Now this was the very object the legislature had in view by the act in question: to enable towns to procure men by volunteering instead of submitting to a compulsory draft of the inhabitants, and authorized them to “ grant and vote such sums of money as they might judge best” to enable them to procure and pay them. This was the policy of the legislature and the object of the town as indicated by its votes, and we think the case upon the facts is within the spirit and meaning of both. It has been repeatedly held that the obligation upon the town was perfect and complete, upon the call of the president for men and assignments of its quota under the law, to furnish them. That the plaintiff was liable to draft, and that by furnishing a substitute or representative volunteer, by which he wholly relieved himself of military service, is not decisive. Procuring-the man did not inure wholly to his benefit. He was counted upon the assigned quota of the town, and this was a benefit to the other inhabitants subject to draft, whom, as a class, the object and effort was, to relieve by procuring others to perform the service the government might otherwise require of them. This state of affairs existing, the town voted to raise a sum sufficient “ to pay each man liable to draft who should furnish a substitute or volunteer for three years, six hundred dollars,” until its quota was filled, and this vote was amended at the same meeting of the town so as to include all who had volunteered or furnished substitutes. The consideration existing then, consisting of the enlistment and credit to the town of the substitute, in view of the request and assurance of the agents of the town to do what was right, although past, is sufficient to sustain the express promise contained in the votes referred to. Seymour v. Marlboro, Cox v. Mt. Tabor, ubi supra.

It is urged that the warning of the meeting is insufficient and does not authorize the votes relied upon. Article 2d of the warning is “ to see what action the town will take in regard to the expected draft soon to be made,” etc., and article 3d is to “ see whether the town will vote to pay bounties to volunteers, if so, what bounties.” This we think sufficiently indicates the business to be done, and that was done under the warning. All that is necessary, as held in Alger v. Curry, 40 Vt., 437, is that the warning should set forth in general terms the purposes or objects for which the money is to be raised, so “ as to notify all interested in the subject matter of the proposed vote or action of the town.” This is also substantially held in Kittredge v. Walden, 40 Vt., 211. It is also urged that the special meeting, which adopted the votes referred to, could not legally adjourn for the purpose of completing its business. We can conceive of no valid objection to doing so, and none is suggested. Circumstances might exist that would not only render it proper but necessary to do so in order to complete the business for which the meeting was called; as the importance, amount of business contemplated to be done, and the time required to accomplish it. As to the validity of the record of the proceedings of that meeting, we think the point made was virtually decided in Hutchinson v. Pratt, 11 Vt., 402, and that it was admissible for the purpose for which it was used.

The only remaining question is, can the plaintiff recover upon the common counts and as for money paid for the use and benefit of the town. Holding, as we do, that the town, in view of the general policy and object of the law, had an interest to relieve its citizens from draft and military service, and as being under an obligation to furnish its quota which could not be escaped, it had a corporate interest and as a town, in whatever relieved it of the burden thus existing, and its liability in respect to any contract warranted by law and authorized by vote, or promise, sustained by a sufficient consideration in respect thereto, is the same it would be as to any other contract thus authorized where money had been paid by another at its request or for its pse and benefit, and that is precisely this case. The plaintiff was directed by the agent of the town to get the man, to put him in, and was assured by him that the town would do what was right about it. This he did; the town desired the benefit of applying him to its quota, and subsequently indicated its sense of what is right by voting to pay him six hundred dollars, three hundred less than he paid to procure him. If here was a sufficient consideration, as there was, an express promise to pay, as what transpired at the time and the vote show, the case falls within the principle alluded to, and the plaintiff is entitled to recover as for money paid for the use and benefit of the town. Worcester v. Ballard, 38 Vt., 60. A majority of the court entertaining these views, the judgment of the county court is reversed and cause remanded.