| Vt. | Jan 15, 1865
The intestate, if liable, must be liable upon the ground of a contract express or implied. The auditor finds that-what the town furnished for her support was furnished as for other poor persons in the town of Benson standing in need of relief. This finding is in reference to the principal portion of the plaintiff’s claim. No charges were ever made against the intestate for what the town thus furnished for support, but the amount was picked out at the hearing from the records of accounts of overseers of the poor in the town clerk’s office. This rebuts the presumption and repels the idea of a contract for payment, and throws the burden on the town to show a contract for payment. The auditor finds that prior to the intestate obtaining her pension in 1858, she often expressed to the overseers of the poor regrets of her inability to pay for the aid she was receiving from the town, and subsequent to receiving her pension, she promised some of the overseers who were assisting her in behalf of the town, that she would remunerate the town so far as she might be able, saying she wanted what should be left of her pension money at her decease, to go to the town. It is clear that the same presumption of a contract does not arise in this case as in case of individuals, where one under no obligation renders aid and support to another. The intestate was practically a pauper, and the town was bound by law to furnish her with necessary support, and it was a question of fact for the auditor to find, whether it was mutually understood that the intestate was becoming debtor for what the town furnished her, or whether it was understood to be furnished under the obligation imposed by statute. Her expressions of regret of her inability to pay, and her expressions of gratitude to the overseers, certainly would not create a legal obligation. What the auditor finds in relation to her promise to pay as far as she was able, is not, under the circumstances, conclusive ; it-depends on how the parties understood it. The conduct of the town tends to show it was not understood in the light of a contract. The town made no charges against her, but drew her pension from year to year from 1858, and instead of appropriating it to remunerate the town, the officers of the town loaned it out, taking notes payable to the intestate, and paying the
The item for expenses of procuring the pension is somewhat of a different character. The intestate requested the town to employ an agent to procure the pension, and the town did so and paid the agent for his services and expenses. As the auditor has allowed this, it is. to be presumed that, he found that it was the mutual understanding that the town was to be paid. As to the other items which the auditor has allowed, the charges for cutting hay, making fence, &c., the auditor finds an express contract at the time for payment, and that the intestate did make some payments upon these items.
The items allowed by the auditor were properly allowed.
On the testimony of Briggs and Howard, in reply to a question to them as to their intention, the auditor finds that what was furnished by them while they were overseers, was not intended by them as a gratuity; but it is not found that the intestate so understood it, nor does it appear from the report that they furnished anything except what the auditor has allowed.
Judgment of the county court, which was for the larger sum, is reversed, and judgment for the plaintiff for the smaller sum, the $42.40. allowed by the auditor.