48 N.H. 333 | N.H. | 1869
Waiving for the present the inquiry whether the selectmen had the power, under the circumstances disclosed, to bind the town by an agreement to pay the plaintiff a bounty for enlisting, we propose to consider whether there is evidence of such an agreement.
On this point it appears that about the time the plaintiff enlisted, the selectmen were engaged in obtaining persons to enlist, to be counted on the quota of Sanbornton, and that on the first day of January, 1864, the plaintiff then being with his regiment in South Carolina did enlist as a veteran soldier, and was actually counted on the quota of Sanbornton. Between December 19, 1863 and January 13, 1864, sixteen, or perhaps one or two more, enlisted in the field, and the sixteen were paid their town bounties, as they called for them, to the amount of $275 each. All were paid subsequent to March 14,1864. Some of these sixteen persons were serving with the plaintiff in South Carolina when they enlisted.
The plaintiff had knowledge of the action of the town in relation to the bounties, but not derived directly through the selectmen. After April 1, 1864, the plaintiff claimed a bounty of the town, and before that the selectmen had no knowledge of plaintiff’s enlistment and credit on the town quota, and at that time one of the selectmen went with the plaintiff to the Adjutant-General’s office and were incorrectly informed that he was credited to some other town and not to Sanbornton.
The evidence tends to prove that the plaintiff enlisted under the same circumstances, substantially, as did the sixteen other veterans who received the bounty from the town. That being the case the payment of the bounty would be in the nature of an admission that they were entitled to it, and that the town was liable to pay; and we think it would be competent for the jury to infer a promise to pay the plaintiff. It would be like an admission of a settlement of a pauper by supporting him. Hopkinton v. Springfield, 12 N. H. 328; Pittsfield v. Barnstead, 40 N. H. 478. So where the question is whether a defendant was liable as partner or joint contractor, the recognition and payment of other claims of the same character might properly be considered.
In the present case, from the admission that the town was liable to
The next question is whether the selectmen had power to make such an agreement and bind the town. The vote of December 1 Oth, 1863, authorized the selectmen to take measures to fill the town quota, not exceeding thirty men, under the last call of the president. The authority of the selectmen is limited, we think, to filling the quota under the last call of October 17, 1863. Such is the article in the warrant, and the vote could not go beyond that.
If then, the quota had been filled previous to the plaintiff’s enlisting, the authority of the selectmen must be considered as exhausted. On 'that point it appears that the selectmen put in the thirty men, the last one having been mustered in February 11, 1864, five or six weeks after the plaintiff enlisted; but the defendant’s counsel says that it appears by the town records which are referred to, that this last recruit received his bounty of the town in December, 1863. If so, the power of the selectmen would seem to have been exhausted before the plaintiff enlisted, and consequently he cannot recover. Unless, then, a trial by jury is decreed to try the question whether the quota was filled before the plaintiff enlisted, there must be
Judgment for defendant.