| N.H. | Jul 15, 1867
The suit is brought to recover a sum of money paid by the town of Lebanon as bounty for a substitute for William P. Benton, who was drafted into the military service of the United States from that town. The substitute, called Washington Howe, was accepted and accredited on the quota of Lebanon, and the money paid to the defendant, with whom the contract was made, he being a substitute broker. Afterwards the assistant provost marshal general having discovered that
The first question is, whether the orders of the assistant provost marshal general were properly received in evidence. As the case is amended there is no error in admitting the evidence if competent for any purpose, there having been no ruling that it was competent to prove the desertion, but only that it was to be weighed upon any point as to which it was legally admissible; and we think it was competent to show that the military authorities recognized and claimed the substitute to be a deserter, and that his name should be dropped from the credit of the town.
The next question is, whether there was any evidence tending to prove that Howe was a deserter from the military service of the United States. To make out this fact, it is necessary to prove that he had enlisted and was mustered into the service, as well as that he deserted, and of these facts there should be a record. We think, however, that the record is not the only evidence, but that these facts may be shown by other proof.
In 3 Greenl. Evid. sec. 483, it is laid down, in respect to evidence in courts martial, which is governed by rules similar to those which apply in this court, that on a charge of desertion or other offence against military discipline, it will be sufficient to prove that the accused received the pay, or did the duties of a soldier, without other proof of his enlistment or oath; and so if an officer is charged with the breach of the particular duty of his office, proof that he acted in that character will be sufficient, without proving his commission or appointment, and see cases there cited; and this, we think, accords with the general rules of evidence recognized in this court.
The proof of enlistment and desertion is largely from the testimony of Huffman, who testified that in September, 1863, he was at Concord, N. H., as a soldier in the barracks there; that the man aftenvards knowm as Washington Howe came there at that time from Portsmouth with some soldiers, and that he came into the same barracks with witness, and remained there a month' or more; that his name was James Rogers, and that after remaining there four or fire weeks he deserted one Tuesday night. That he saw him next time at West Lebanon, in 1864, as he was going from the provost marshal’s office to the depot, to the cars, that he recognized him as James Rogers, though he then bore the name of Washington Howe; that as he met him he pulled his cap down over his eyes; that witness went to Concord with him in the cars, went and sat by the side of him, and said, "How are you, Rogers ?” but he did not answer; that he was taken and examined in witness’ presence, and he answered to the name of Howe; and that night he was sent to the guard house, and witness was paid §30 for his services in thus detecting this Howe as a deserter. He also testified that at Concord, in 1863, he bunked near Howe, and saw him many times every day.
This evidence, we think, has a legal tendency to prove the enlistment, mustering in, and desertion. It tends to show that Howe did the duties of a soldier in the military service of the United States, for several
The remaining question is, whether the defendant can be regarded as having undertaken that the substitute was not a deserter. Upon that point we think the evidence tends legally to prove a usage at the place of the contract, that the substitute broker was understood as warranting that the substitute was not a deserter, and that the defendant had knowledge of such usage; and that being the case, the parties must be deemed to have contracted in reference to it, and a warranty is to be implied. Ch. on Con. 399; 2 Parsons on Con. 50, and note 2. Hutton v. Warner, 1 M. & W. 466, Avhere it was held that a custom of the country that a landlord should allow an off-going tenant pay for seed and labor on the arable land was to be considered as imported into the lease.
We are of the opinion, therefore, that there was evidence legally tending to prove a custom of the trade from which would be implied an undertaking by the defendant that the substitute furnished by him was not a deserter, and inasmuch as there Avas evidence tending to prove that he was a deserter, by reason of Avhich the consideration for the payment by the plaintiff Avouid entirely fail, the plaintiff is entitled to recover back the money so paid, in a count for money had and received. It makes a case of an entire failure of the consideration upon which the money was paid, like an entire failure of title to personal property, and under such circumstances the money may be recovered back in this form of action. Holden v. Curtis, 2 N. H. 61, and cases cited; Wiggin v. Foss, 4 N. H. 295; Shove v. Webb, 1 T. R. 732, where the title to an annuity failed in consequence of some informality in registering the memorial, the court saying that although there was no fraud, it would be unconscientious in the defendant to retain the money.
Much the same is Stratton v. Rastall, 2 T. R. 369, where the court says, when a man receives money upon a consideration which afterwards fails, the person paying it may recover it back as money received to his use. So is Cripps v. Reade, 6 T. R. 606, and Robinson v. Anderton, Peake’s Cases, 94; see also cases collected in note 1, to Marriot v. Hampton, 2 Esp. 546, and Lockwood v. Kelsea, 41 N. H. 185.
Here was an absolute and entire failure of the consideration for which the money was paid, as in .the case of the annuities Avhich were void for want of registry, leaving nothing in the plaintiff’s hands to be returned, and there was evidence tending to prove that the defendant had notice that HoAve was a deserter. Under these circumstances, we think the plaintiff is entitled to recover back the money paid.
It is urged ‘by the defendant that the town has not been injured, even if IIoAve’s name has been dropped from the quota of Lebanon; but that Benton is the person injured. It will be perceived, however, that the money was paid by the town to Heath, for procuring a substitute that should be accepted and mustered into the military service of the United States, and be credited and allowed on the quota of Lebanon. In this the defendant has totally failed, and the toAvn has received no benefit whatever from the contract, and the defendant cannot conscientiously retain the money.
Judgment on the verdict.