Scribner v. Town of Hollis

| N.H. | Jun 15, 1868

Nesmith, J.

The most important 'question arising here for our consideration is, whether the town of Hollis was legally bound to pay the plaintiff’s claim. Upon a fair construction of the language of chap. 55 of the Revised Statutes, and the decisions had in this State and elsewhere, upon claims similar in character to the plaintiff’s, we think the' town was not bound in law to pay for any part of this labor. The plaintiff has failed to show any contract, or any request emanating from a majority of the selectmen, which can bind the defendant. Woods s. Dennett, 9 N. H. 57; Rollins v. Chester, 46 N. H. 414; Wells v. Goffstown, 16 N. H. 53; Andover v. Grafton, 7 N. H. 304; Otis v. Strafford, 10 N. H. 354; Burbank v. Piermont, 44 N. H. 44.

It has not been the policy of our courts to extend the power or authority exercised by one of the selectmen upon subjects of this kind, beyond the doctrine laid down in Lee v. Deerfield, 3 N. H. 290, where it is stated, that if the assent of the majority of a board of selectmen may ever be 'presumed to matters other than merely formal, it must be in cases where such prompt action is necessary, that it would be impossible to convene the board, or where the actual inconvenience of a previous consultation would practically amount to an impossibility.

But it is said, there has been a general usage which has been long established in Hollis to allow their highway surveyors to furnish their own services, and to employ others, and to pay for their labor, without the special authority of the selectmen first had and obtained. If such usage has been tolerated, it is enough for us to say that it cannot be now so construed as to repeal or violate the positive rules of statute law. Rogers v. Allen, 47 N. H. 529, and other cases there cited, and in defendant’s brief. We favor the breach, rather than the observance, of such usage. We do not think this case one where the assent of the other selectmen ought to be presumed. But if under the circumstances, we should allow the existence of the usage to prevail, as claimed by plaintiff, still it will be seen that he fails to bring his case within the range of it; upon his own grounds he brings his action prematurely.

In any point of view, the claim set up by plaintiff cannot be sustained, and must be rejected as illegal. Where the contract is illegal or invalid, the payment of money into court gives it no validity. 1 Grreenl. Ev. sec. 205; Cox v. Parry, 1 Term R. 464; Hitchcock v. Tyson, 2 Esp. Rep. 481; Rucker v. Palsgrave, 1 Taunt. 420; Ribbans v. Crockett, 1 B. & Pull. 264; Hubbard v. Knous, 7 Cush. 556. Generally, where the contract is not illegal, payment of money into court upon a general indebitatus assumpsit is no admission of a contract beyond the amount paid in. Seaton v. Benedict, 5 Bing. 28.

There must be

Judgment for defendant.