48 Me. 551 | Me. | 1860
The case is stated in the opinion of the Court, which was drawn up by
The case finds that one' Thomas Paine was duly appointed, under the provisions of law then existing, by the selectmen of Knox, as an agent for the town, to sell spirituous and intoxicating liquors for medicinal and mechanical uses, during the year 1854, and that he was duly qualified.
James Weed, a witness called by the plaintiff, testified, without objection, that “ he purchased the liquors named in said account annexed, in Boston, in his said capacity as one of the selectmen of Knox, under the direction and by the decree of a majority of said board of selectmen, to be sold by said agent, in virtue of his capacity as agent aforesaid; that the said notes were given for a balance of said account, and signed by witness and said Higgins, in virtue of their said capacity, and indorsed by them to the plaintiff.”
This suit is brought on the original account and also on the two notes given for a balance of that account, of the following tenor: — “Boston, Oct. 25,1854. Six months after date, we promise to pay to our own order, three hundred dollars, for value received.
(Signed)
“James Weed, ) Selectmen of
“ John Higgins, S town of Knox.”
The statute of 1851, § 2, authorized the appointment of the agent of the town to sell, as disclosed by the witness, and the statute of 1853, § 8, directs that the casks and vessels containing the liquors, shall be marked with the name of the towq and its agent, and that the agent shall have no interest in such liquors or in the profits of the sales thereof.
The cities, towns and plantations being thus authorized, under these two statutes, to sell spirituous and intoxicating liquors for specific purposes, had necessarily an implied authority to purchase, otherwise the law would be nugatory. An agent to sell is not necessarily an agent to purchase, and, in the absence of any specific power, delegated by the town to any particular person, the selectmen are constituted the general agents to act for their towns in furtherance and aid of statute or municipal regulations; and such trust cannot usually be more appropriately conferred.
The sale, then, of the liquors to the selectmen, as the agents of the defendants, was a legal sale to the. principals, who are legally bound to the plaintiff to pay to him the stipulated price, if any, or a quantum meruit. Have they done it ? The defendants’ counsel contends that they have, and reasons thus: the original account was paid by the negotiable notes, — the notes, although purporting to have been given by the selectmen, do not bind the town, but the signers, and therefore the town has avoided an original legal liability. Assuming these propositions to be true, how are the defendants finally to be benefitted ? They may defeat the plaintiff in this action, who may resort to the signers of the notes, and they, subsequently, to the town in an action for money paid, laid out and expended for its benefit. Circuity of action is always to be avoided, when possible, and the maintenance of the present action, for such cause, may not violate any known rule of law, but we prefer to place the decision on other grounds.
Are the notes those of the town or only those of the signers ? By the earlier decisions in this State and Massachusetts, they would be those of the latter; but how far subse
If the notes were negotiable in the hands of the plaintiff, of -which, as the case is presented, there may be doubt, still, is the plaintiff debarred from maintaining this suit on his original cause of action? We think, from the evidence and the authorities, that he is not. The plaintiff’s original claim was against all the inhabitants of Knox, and, from the evi
Nonsuit taken off, and Case to stand for trial.