Seymour v. Town of Marlboro

40 Vt. 171 | Vt. | 1868

The opinion of the court was delivered by

Prout, J.

The grounds of exception in this cause are, that the county court refused to direct a verdict for the defendant, but directed the jury to return a verdict for the plaintiff.

The plaintiff claims that the decision of the county court is correct, and that he is entitled to recover by virtue of the vote of the defendant town, of the 5th of December, A. D. 1863, by which it appears that the town voted to pay three hundred dollars to such volunteers as should enlist and bo mustered into the United States service to fill the quota of the town, under the call of the President, of October, A. D. 1863. The quota of the town under that call was sixteen men. The plaintiff re-enlisted in the field about the time of the expiration of his first term of enlistment, and was credited to the defendant town. At the time he re-enlisted he had been informed that they had voted to pay bounties to those enlisting, who caused themselves to be thus credited, to the amount he claims to recover in this action. After his re-enlistment he came home, when on furlough, and notified the selectmen that he had re-enlisted to apply to-the quota of the town, and claimed the amount of bounty they were paying others under the vote referred to. The selectmen, not having then filled the quota, required of*the town,-informed the plaintiff that if they could get him credited or applied to that quota they would pay him three hundred dollars bounty, as they were authorized by the vote in question. This interview was had on the 4th day of January, as the case finds, and the town were required to furnish the men, the day after, on the 5th. For the purpose of ascertaining if the plaintiff could be applied to the quota the town were then required to fill, as the parties mutually desired, they immediately applied to the provost marshal, who, being unable to inform them, communicated with the adjutant general of the state for information. He informed-the parties that the plaintiff could not be counted on that quota, for the reason disclosed by the exceptions. The plaintiff, on re-enlisting, having been credited to the town, it is not apparent to us why he could not have been thus counted or applied. He was not, and the town filled the quota with other men. Both the plaintiff and selectmen of the town, thus far, seem to have acted with reference to the vote of December 5th, 1863, .which was adopted for the purpose of enabling the town to procure men to fill the quota required under the call of the President of October, 1863. The plaintiff, not having been applied to that quota, without fault on the part of the agents of the town, wo think he is not entitled to recover hy virtue t>f that vote.

But there is another view of this case upon the facts. The plaintiff was an inhabitant of the defendant town. He enlisted into the service in August, 1861; re-enlisted about the time of the expiration of his first term of service, and caused himself to be credited to the town, knowing they were paying bounties for such enlistments and Credits, and expecting they would pay him as they paid others for like service. He remained in the field in the performance of his duty until the close of the war, and until honorably discharged. This long period of military service, a portion of which was performed under a re-enlistment thu3 induced, was not only meritorious but beneficial to the town, and constitutes a good and sufficient consideration for an express promise to pay him. In view of the decisions of this court, relating to the general subject, it is quite too late to question, or for the court to doubt, the authority of the town to raise and appropriate money, either by assessment in the usual mode, or upon credit, pursuant to vote, for the purpose of enabling them to furnish their assigned quota of men for the army during the war. The legislature authorized it, not only to enable the towns of this state to discharge a corporate duty under the law, but to relieve the inhabitants in respect to drafts and military service. Any contract or agreement, therefore, express or implied, entered into for this purpose and to this end, is obligatory; and if the facts in this case show what is equivalent to an express promise to pay the plaintiff the amount he claims for his military service, the town can stand upon no different footing than an ordinary party with respect to an ordinary contract. The plaintiff having re-enlisted, and having caused himself credited to the defendant town, as already remarked, he was applicable to the quota of the town under the call of the President of the 19 th of December, 1864. Under these circumstances, having faithfully served until discharged, the defendant town, in March, 1865, voted to, pay him the sum of three hundred dollars (the amount he seeks to recover) at the expiration of his term of service. This.vote we regard as having the effect of an express promise as between ordinary parties. It is á promise made to the plaintiff, expressed in the only way the town in its corporate capacity could express it, and was made in consideration of services that not only enured to, hut were directly for the benefit and relief of the inhabitants of the town.

The fact that the promise (vote) was made upon a past consideration does not affect its validity upon the facts. The consideration upon which it was made, moved from the plaintiff, was meritorious and beneficial. Booth v. Fitzpatrick, 36 Vt. 681. Giving then the vote the effect we do, immediately upon its adoption by the town, the legal rights of the parties as to the claim in controversy, and to which it refers,, became fixed, and these rights, as to the plaintiff, upon the facts in this case, cannot be defeated by the subsequent vote rescinding it. An ordinary party cannot recall an express promise to pay another, based upon sufficient consideration, and thus relieve himself of liability in consequence of it, and we do not see how, upon principle, a town can.

The judgment of the county court is affirmed.