Town of Troy v. Aiken

46 Vt. 55 | Vt. | 1873

The opinion of the court was delivered by

Ronce, J.

The notes which the defendant and Porter and Hammond executed as selectmen of the town of Troy, were executed by them as the agents and servants of the town ; and in the negotiation and sale of the note by the defendant to Robinson, he acted as the agent of the town. The defendant now seeks to avoid all legal responsibility to his principal, upon the novel theory that his principal had no legal authority to execute the note upon which he procured the money. As between principal and agent, moneys received by the agent upon securities executed by, and belonging to, the principal, are the property of the principal, irrespective of the question of the legal liability of the principal to the holder of the securities. Hence, in passing upon the legal sufficiency of the declaration, it does not become necessary to decide the question made in argument as to the right of towns to issue negotiable notes. The retention of the note by the defendant after the purpose for which it' had been delivered to him had been .accomplished, was wrongful; and it stands admitted, that when Porter and Hammond called upon him’for it, he informed them that he had destroyed it; and that afterwards, with .intent to defraud the plaintiff, and without right or authority, he negotiated and passed the note and received the avails. These admissions, in connection with the fact that the money was obtained upon a security that belonged to the plaintiff, and upon its credit, is conclusive against the right of the defendant to retain, it, and of his. liability to the plaintiff under thi.s declaration.

The declaration is adjudged sufficient, judgment reversed, pro forma, and the defendant may replead, upon payment of plaintiff’s costs pending the demurrer, and taking none.