Town of Canaan v. Derush, 47 N.H. 212

Town of Canaan v. Derush

47 N.H. 212 | N.H. | 1866

Nesmith, J.

From the facts disclosed in this case, we draw the inference that the selectmen were the agents of the town, authorized under the statute law, and the special vote of the town, to discharge only certain well defined duties.

1. They were clothed with the power to fui'nish the due quota of soldiers required of their town, in obedience to the call of the general government for military service.

2,. They were authorized to pay a specific town bounty to all such soldiers, as might be duly enlisted and accepted into such service by the several legally constituted and examining officers assigned to such duty.

*214The selectmen, as the agents of their town, failed to perform their duty to the general government in the case before us, because they knowingly undertook to furnish or pass off upon the government as sound, a man, who was not able-bodied, therefore, not physically qualified for the intended service. They were also unfaithful to the town,' because they prematurely and improperly advanced the bounty money of their town to one Avho was finally rejected on account of the well known physical defect which existed in the defendant at the time they paid over the bounty money to him. The selectmen have, therefore, exceeded the authority conferred upon them by law. They have not acted with due discretion or caution, nor within the scope of their legitimate authority, and it is enough to say the town is not bound by such agency.

The plaintiffs have derived no possible benefit from the enlistment of the defendant, but have suffered an injury, equal to the amount of the bounty paid.

If the agent exceeds his authority, or does an act within the scope of his authority, and at the same time does something more, which he was not authorized to do, and the two matters are not so connected as to be inseparable, even though both may relate to the same subject, that which he has authority to do is only binding, and the other is void. 2 Greenleaf’s Evidence sec. 59; Brown v. Bundlett, 15 N. H. 360; Towle v. Leavitt, 23 N. H. 374.

And the defendant is in no situation to resist the claim of the plaintiffs, for he, from the beginning, has participated in the wrong done, and he withholds the money .without right, and without consideration. Boutelle v. Melendy, 19 N. H. 196. The parties are not in pari delicto, as the town have done nothing to sanction the unauthorized act of their agents, having received no conceivable advantage therefrom, and have used suitable diligence to disavow the same. The plaintiffs are entitled to a remedy here, upon more than one ground. There is the general elementary rule. If the agent pay the money of his principal, which ought not to be paid, it may be recovered back by an action of indebitatus assumpsit, at the suit of his principal, and sometimes at the suit of the agent himself. Comyn on Contracts 280.

So, if through the fraud, or misrepresentation, of the defendant, a contract has been entered into, under which the defendant has received more than he is justly entitled to claim, the plaintiff has the right to recover back the excess. Dana v. Kemble & Trustee, 17 Pick. 548 ; Moses v. McFarlen, 2 Burrows 1012; Hall v. Schaltz, 4 Johnson 246; Mason v. Waite, 17 Mass. 563; 2 Greenleaf's Evid. sec. 120; Bliss v. Thompson, 4 Mass. 488.

We have reason to suppose, from the case, that if the defendant had honestly disclosed his physical defect to the army surgeon who first examined him, he would not have been then accepted, and received his bounty. Hence the defendant, by such fraudulent concealment, should not be permitted to profit, and on this ground, this action can be rightfully maintained.

This action can be maintained, also, upon the ground that the defendant has received money of the plaintiff upon a consideration which has *215failed; or, upon an agreement which has been rescinded by reason of fault in the defendant. 2 Greenleaf's Evidence sec. 124; Chitty on Contracts 487; Conner v. Henderson, 15 Mass. 319; Gillet v. Maynard, 5 Johnson 85.

We are inclined to the opinion, that the plaintiffs are entitled to maintain this action upon either of the aforesaid grounds, unless it be conceded that the defendant was actually accepted and counted in by the United States mustering-in officers, as a soldier for Canaan. In such case, as the case now stands, plaintiffs would have no cause for complaint. If defendant has such facts in reserve, the case may be discharged to receive them.