Town of Lemington v. Blodgett

| Vt. | Aug 15, 1864

Barrett, J.

The record of the warning, dated the 18th-'Of February, for a meeting the 4th of March, and that the inhabitants met agreeably to the above notification, and thereupon chose all their town officers, and voted all their taxes, is sufficient, prima facie, to show that the warning was, in fact, posted up in conformity to the provisions of the law.

The law does not require selectmen to be sworn. Even if it did, it would be presumed that they were so sworn, unless the contrary is shown, in cases where they undertake to protect themselves from personal liability by reason of their office.

It was proper, in behalf of the town, if there was need of it, to show, by parol, that .the selectmen, who had been elected, acted as such during the year.

The official certificate of the town clerk is prima facie authentic, and it is not necessary, in this state, in order to render a record, or other paper certified by him, admissible in evidence, to show by other proof that he was either elected to the office, or sworn.

The only remaining questions arise as to the direction of the court to the jury, that if all the evidence was believed, the plaintiff was entitled to recover.

Osgood was appointed agent by the commissioner on the 8th of May, 1862, the year and office of the defendant as such agent having expired. Prior to this, and for the purpose of supplying the agent, who should succeed the defendant, two of the selectmen negotiated with the defendant, in respect to the liquor he then, as such agent, had on hand, and on the 7th of May the negotiation resulted in an agreement that he was to, and he did, deliver the liquor, for the purpose aforesaid, to said selectmen, one of whom was Osgood. On Osgood’s being appointed agent, he took the liquors thus procured, and held and sold from them as such agent, up to the time it was attached by the defendant as constable, on a writ against Osgood. The question is, whether the liquor thus in the hands of Osgood, was the property of the town. In considering the evidence, it is proper to premise that the statute creating the agency and authorizing the sale of liquor by him, contemplates that the liquor shall belong to the town, and only to the town; and, by the force of its provisions, as well as by its whole policy, it excludes the idea, of the agent himself being such owner. ;

The evidence shows clearly that, in what the selectmen did, they were, in their own intention and belief, acting in behalf of the town. The paper they gave to the defendant, though by its terms it was a personal promise by themselves, still it is apparent from its recitals and the manner in which it is signed, that it was made by them in behalf of the town.

If they were thus acting for the town, the fact that they gave to the defendant their personal obligation to pay for the liquor would not affect the question of the ownership of the liquor. It was an undertaking in the character of sureties for the town, — they taking the hazard of being relieved from the burden of the liability thus assumed. It appears, though the fact may not be very material, that the town did pay for the liquor in discharge of the undertaking of the two selectmen.

The fact that the liquor went into the possession of Osgood has no tendency to show, or to constitute, him the owner of the liquor,— because, as before said, Osgood was the liquor agent of the town, and, under the law, the liquor held by him as such agent is to be regarded as the property of the town till it be made affirmatively to appear that it belongs to somebody else.

The various points made as to the effect of the manner in which Osgood’s compensation was to be, and was fixed, and as to money furnished by Holbrook, one of the selectmen, to purchase more liquor for the agent to sell, and as to the mode in which the liquor in question had been procured by the defendant as the former agent, cannot be regarded as operating, in law, to countervail or invalidate the title of the town, as depending on the transaction shown by the evidence, by which the liquor came into the hands of Osgood as agent.

What the defendant testified, whether true as he claimed, or false, as Holbrook testified it was, viz: that the defendant refused to sell it to the selectmen on the credit of the town, so as to have the town made chargeable for it, and insisted that they should do as had been done the previous year, — i. e., have an agent that would procure the liquors with his own money, — we regard as entirely immaterial; for the effect of the transaction must stand upon what was really consummated by it, as affecting the title to the liquor. The defendant was not acting in behalf of, or in privity with, the town; and when he had parted with the liquor, his notions or will could have no effect upon the title as between the selectmen and the town. On the whole then we see no error in the direction given by the county court.

Judgment affirmed.