44 Vt. 91 | Vt. | 1871
The opinion of the court was delivered by
This was an action of assumpsit to recover a town bounty. Plea, the general issue, and trial by jury. The vote of the defendant town, under which the plaintiff claims to recover the bounty sued for, is so like the vote in Johnson v. Bolton, in 43 Vt., 303, that the construction given to the vote in that case must be regarded as an authority in this. •
Judge Redficld says, in that case, that the vote is not an open, general offer, which being accepted, constitutes a contract. The plaintiff re-enlisted in the field, December 15th, 1863, and was mustered in to the credit of the defendant town December 16th, 1863, and applied on their quota, under the call of October 17th, 1863. The plaintiff’s testimony tended to show that he re-enlisted, expecting a bounty from the defendant town; but this expectation must have been based upon the information which he testifies came to his company, that the defendant town, and some other towns in that vicinity, were going to pay bounties, for the vote of the defendant town, which authorized the payment of bounties under the call of October 17, was passed on the 14th of December, and the plaintiff re-enlisted the next day after, at Brandy Station, in Virginia.
It is not claimed that the selectmen, whose duty it was under the vote to fill the quota, made any contract with, or incurred any liability to, the plaintiff to procure his re-enlistment.
It has been repeatedly held, that to entitle a soldier to recover under a vote like this, it was incumbent on him to prove an agreement, upon the part of the town, to pay him the bounty. James v. Starksboro, 42 Vt., 602. Chase v. Middlesex, 43 Vt., 679. Johnson v. Bolton, ib., 303.
And even though his enlistment operated to the benefit of the town, and saved them the necessity of procuring another man, and paying him a.bounty, this gives him no legal claim upon the town, unless they have agreed to pay him. Hatch v. Fairfax, 43 Vt., 319.
To prove such agreement, or that the town by its selectmen'Tiad adopted his act, the plaintiff testified, under the objection of the defendant, to the conversation with Dr. Haines, one of the select
That statute provides, that where one of the original parties to the contract or cause of action in issue, and on trial, is dead, the other party shall not be permitted to testify in his own favor. Dr. Haines cannot be said to have been a party to the contract, in the sense in which the term is used in the statute. He was simply one of the agents of the town, and authorized by their vote to make contracts for the town; and a mere agent or officer, through whom another negotiates a contract, is in no legal sense a party to the contract. So that, as the parties appear of x'ecord, we think this evidence was properly admitted. This view is fully sustained by Cheney v. Pierce, 38 Vt., 515.
The plaintiff does not claim that ho had any other communication with the selectmen than the one detailed with Dr. Haines, upon the subject of his enlistment, or bounty.
The court are not entirely agreed upon the question, as to whether the jury would have been justified from all the evidence in finding a contract, in fact, .to pay the bounty, or such an adoption of the act of the plaintiff as would bind the town to the payment of the bounty. But we are agreed that, assuming all to be true, which the evidence tended to show, the court erred in holding that the law would imply an undertaking in behalf of defendant town to pay the bounty. If towns were in the first instance made the debtors of such men as enlisted, and applied upon their quota, in the absence of any express contract, as to the compensation to be paid, the law would imply a promise to pay a reasonable compensation, or such sum as the service was reasonably worth ; but towns can only be made liable to pay for such service in this class of cases upon proof of an express contract. Hence, no such implication arises. And, instead of the law implying a promise or contract to pay from such a state of facts, the evidence should have been submitted to the jury, to be weighed by them upon the question, whether any such contract was made.
The judgment of the county court is reversed, and case remanded.
