Inhabitants of Alna v. Plummer

| Me. | May 15, 1826

Weston J.

at this term delivered the opinion of the court.

With regard to that part of the plaintiff’s claim, which arises from a payment made to the town of Dresden, to reimburse them for certain expenses, incurred in the support of the wife of the defendant, it becomes important, to determine whether the plaintiffs were under any legal obligation to make this payment. It appears that the defendant’s wife was found out of the town where she had her legal settlement; that she was in distress ; and stood in need of relief. It must be aiforded from some quarter. No person is left by law to depend upon the precarious support of voluntary charity ; or to suffer for the want of credit, which may sometimes happen to those, especially when absent from their usual residence, who may ultimately be found of sufficient ability to refund expenses, incurred in their behalf. It is made the duty of the overseers of the town, where a person may be found in distress, to Institute an inquiry, not as to any means he may possess, of'which he cannot then avail himself; but whether immediate relief is necessary. Were it otherwise, the party might be left to suffer, while the overseers were deliberating as to the extent of their official duty, and the nature of their remedy. The law has not subjected the towns they represent to the necessity of first attempting to enforce their claims against the party himself, before they can call upon the town where he has his settlement ; but, to quicken their diligence, •has given a certain and sufficient remedy against such town, in all cases where they are bound to furnish relief. And this obligation is imposed when distress exists, and relief is necessary, for persons found out of the place of their legal settlement. Persons thus circuinstanced will generally be paupers, but the statute has not in terms made it necessary that they should be in order to entitle them to the relief prescribed.

This construction is supported by the case of Paris v. Hiram, cited in the argument. It is true the court there say, in reference to a party in need of relief, that, “ if the distress is of his C{ own procuring, and may be removed by his own exertions, and “ this known to the overseers of the town who provide for him, a <£ question may arise as to the right of recovery but upon this point they forbear to give an opinion. No question of this kind however can arise in relation to the relief furnished to the defendant’s wife. We are upon full, consideration, of opinion that Dresden had a qlaim upon Aina for the expenses in question, against which no legal defence could have been made.

But it is contended that a town has no remedy against the individual relieved, except in virtue of the nineteenth section of the act for the relief of the poor, ch. 122, winch-gives an action only for the support of a pauper; and that it lies not in this case, the party relieved not being a pauper. Had it not been for this provision of the law, it might have been questionable whether sup-* plies furnished to a pauper were not to be deemed gratuitous, and not therefore constituting a sufficient consideration to raise an implied assumpsit on his part to pay for them. But when furnished to a person not a pauper, there can be no doubt but the common law affords a sufficient remedy, without the aid of the statute. The defendant, having neglected his wife in her deranged state of mind, was as liable for her necessary support, as if he had turned her out of doors. In refunding to Dresden their expenditures, the plaintiffs were paying his debt. It was not done at his request; but it was not an act of voluntary interference in his concerns ; it w as an obligation, from which they had no means of escape. Under these circumstances, the law implies an undertaking on his part, founded on the ties of natural justice, to repay to them what they have necessarily expended on his account.

In the case of Hanover v. Turner 14 Mass. 227, the plaintiffs having relieved the defendant’s wife, she being settled in another town, brought their action directly against him. It was contended that the action should have been brought against the town where she had her settlement, and that they had their remedy over against the husband. No doubt appears to have been entertained, that this course might legally have been pursued ; but. to atfoid circuity, the action was sustained. The liability of the defendant in the case before us, is supported by the principles of that case.

We have decided, upon a view of the authorities, in the case of Cleaves v. Foss, in the county of York, that in sales of real estate at auction, the auctioneer is the agent of both parties; and that his putting down the name of the purchaser, with the price and conditions of sale, was a sufficient signing within the statute of frauds. In the case before us, the memorandum was made by the clerk of the auction ; but as this was done in the presence of the auctioneer and of the defendant, and, as the jury have found, with the full knowledge of the .. >: appears to us to fall clearly within the principles of that case. The auctioneer virtually made the memorandum by the hand of his clerk. In the case of Coles v. Trecothic 9 Ves. 234, it was-stated that although the auctioneer was authorized to sign for the principal, yet his clerk is not authorized to sell'in his absence, without the assent of the principal. But in this case the clerk acted in the presence, and by the virtual direction, of both the auctioneer and the purchaser. It is not necessary that either the auctioneer or clerk should be authorized in writing. Sugden's law of vendors, 74,75, and the cases there cited.

An objection has been made to the sufficiency of the deed ; but we consider it substantially like that which was the subject of consideration, in the case of Decker v. Freeman 3 Greenl. 338. The authority given to the committee to sell, on the tenth of Sept. 1821, virtually included, as necessary to the execution of that power, an authority to convey. On the day of the sale the committee tendered the deed ; and all their doings were confirmed by the town in December following. The measure of the damages, was, as the judge instructed the jury, the price agreed to be paid for the pew by the defendant, who will be entitled to the deed, whenever he chooses to accept it. The verdict being amended in conformity with this opinion, judgment is to be rendered thereon.