Townsend v. Hoyle

| Conn. | Jul 15, 1849

Ellsworth, J.

Of the several objections which are made in this case, there is only one that is attended with serious difficulty; and that is, sueing in the name of Townsend, the treasurer.

The promise was made to the city of New-Haven, and not to this plaintiff; nor has he any interest in the fulfillment of it, to be entitled to damages for its breach. Although the promise is to pay him, it is neither made with him, nor on his account; and without one or the other of those requisites. we know of no law that will permit Townsend to sue for himself, or for the city, in his name.

This principle was established in Piggot v. Thompson, 3 B. & P. 147., half a century since,-a leading case, ever since followed. There, a promise was made to commissioners for draining lands, (a corporate body,) to pay their treasurer certain tolls. All the judges held, it was a promise to the corporate body only, and the treasurer had nothing to do with it, merely because he was designated to receive the money. So in Gilmore v. Pope, 5 Mass. R. 491, on a promise to pay installments to “A B, agent,” it was, held, the agent could not sue in his own name. The same was held in Bainbridge v. Downie, 6 Mass. R. 253, and in Gunn v. Cantine, 10 Johns. R. 387; in which last case, the court say, “a mere agent or attorney, not having any beneficial interest in a contract, cannot maintain an action upon it, in his own name.” The same doctrine is affirmed in our court, in Spencer v. Huntington, 6 Conn. R. 312, and in Bissell v. Spencer, 9 Conn. R. 267. So in Buckbee v Brown, 21 Wend. 110. and Sailly v. Cleveland, 10 Wend. 157.

We know of no cases which lay down a different doctrine, unless it may be Fish v. Ellis, 3 Pick. 322, and Thompson v. Page, 1 Metc. 565. Whatever apparent authority those cases may afford, we do not think the court meant to hold differently from Piggot v. Thompson, and Gilmore v. Pope; or to lay down any principle inconsistent with the views we have just expressed.

It was said, on the trial, the contract was void, for want of consideration; and furthermore, that it was against the policy of the law, as being an engagement to pay money to the city of New-Haven, for performing its duty.

We agree with the defendants’ counsel, that a promise to pay public agents a premium for doing their duty, is illegal and void; nor would we sustain a contract tending to such a consequence, or as being a restraint on the exercise of unbiased judgment. But this is not of that character. For many years, St. John street had been dedicated to the public use, and the only thing to be done, was to define it, and have it recorded. It is true, one Gaston, who had united in the act of dedication, claimed, that a narrow strip of a few feet near the middle of the road, had not been given up by him to the public, for which he asked to be indemnified. The defendants, wishing to have this impediment removed, if indeed it existed, and the road accepted and recorded, applied, in form, to the city, to have St.John street laid out and defined-i. e. to be made entirely explicit-and then accepted and recorded. None of the parties expected a new highway to be laid out through private or enclosed land. This strip was to be taken, of course, and to be appraised, if need be; and these defendants, having a special interest here, undertook to pay the damages. In this, we perceive nothing exceptionable, or of dangerous tendency. We see no temporizing with public agents, and no restraint upon a free and unbiased judgment.

Then, as to consideration. The defendants are not only benefited in common with other citizens, but, obviously they had a peculiar and local interest, and well might obligate themselves to indemnify the city for assuming the burthens and responsibilities of a new public highway.

This is all the determination the case calls for; but we must not be considered as assenting to the proposition, that a promise by individuals to pay a part of the expenses of public improvements, ordered by public authority, is of course illegal and void. We think the amount of a public burthen, or the cost to the public of an improvement, may properly enough enter into the question of expediency or necessity.

A canal, a rail-road, a bridge, a new street, a public square, or a sewer, is called for. If made in one way, or in one place, it will be much better for the public, though more expensive; but individuals, especially benefited, stand ready, by giving their land, their money or their labour, to meet the extra expense. Will these promises be void, as being without consideration, or against public policy ? We think not.

It was further objected, that St. John street was not laid out by bounds and limits, nor recorded in the records of the town of New-Haven, nor found to be of common convenience and necessity. Our answer is, that this street, as dedicated and used, before the 26th of August, 1847, together with its new and exact South line in the report, with the little strip of Gaston’s land, is sufficiently laid out and recognized, by the city of New-Haven, by its doings on the said 26th of August. City highways must be recorded in the city records, and need not be, in the records of the town. A different construction of the statute would be novel and absurd.

Nor can it be necessary, for the common council, to preface their laying-out a highway, by declaring they find such highway expedient and necessary. This necessity is sufficiently implied in their action on the subject; inasmuch as they can act only in such a case. They certainly need not record their motives, where they have acknowledged jurisdiction to act. It might be otherwise, did their jurisdiction depend upon their first finding a preliminary fact to be true.

We advise a new trial.

Church, Ch. J., and Waite, J. concurred fully in this opinion. Storrs, J., concurred also as to the incapacity of the present plaintiff to sue; but would go further, and hold the undertaking of the defendants, without consideration, and opposed to public policy. Hinman, J., being a citizen of New-Haven, declined giving any opinion.

New trial to be granted.