Stiles v. Town of Danville

42 Vt. 282 | Vt. | 1869

The opinion of the court was delivered by

Pierpoint, C. J.

The objection, that the plaintiff cannot recover in this case by reason of his being a minor at the time of his enlistment into the United States’ service, is not well taken. This question was before this court and decided in the case of Baker v. Baker, 41 Vt., 55, and the decision in-that case must govern this.

The declarations of Trussell, we think, were properly excluded. The declarations were made long after the contract, to which they related, was made, and long after his agency had ceased. The plaintiff was not present, and had no connection with the occasion upon which they were made. They were in no sense a part of the res gestee. They stand like the naked declarations of any third person, who may be supposed to have a knowledge of the fact. That they were made in public town meeting, or that the party .making- them was dead,' adds nothing to their admissibility under the circumstances.

But it is said that Trussell had no authority from the selectmen to promise the plaintiff to pay him a bounty of $700. What the precise instructions of the selectmen were, does not distinctly appear. That Trussell was authorized to. procure volunteers to enlist, and to offer bounties to the extent of $500, is conceded, so that, in making the contract with the plaintiff, he was acting within the general line of his authority. And the jury have found that his instructions were such that he understood and had the right to .understand that he had the right to make such a contract as he did. They have also found that the plaintiff so understood it when he entered into the contract. This, we think, is quite sufficient to make the contract binding upon the town. This question, however, is immaterial in this case, as it appears that one 'of the selectmen participated in perfecting the enlistment of the plaintiff, with full knowledge of all the terms of Trussell’s contract. This brings the case within the principle established in Haven v. Ludlow, 41 Vt., 418.

The judgment of the county court is affirmed.