Wallace v. Inhabitants of the First Parish

109 Mass. 263 | Mass. | 1872

Morton, J

This is a suit to recover for services rendered and money expended in prosecuting a suit in favor of the defendants upon a note and mortgage owned by them. The plaintiff was employed to commence this suit in August 1863, by Joseph Winn, who claimed to act as treasurer of the defendant parish. No record of any meeting of the parish since 1857 can be found. In order to prove that Winn was treasurer, the plaintiff introduced paroi testimony, which tended to show that a warrant was issued and a meeting called and held in the spring of 1863 ; that Elisha Withington was elected clerk and Winn treasurer, and a parish committee was chosen; that the officers were sworn; that Withington acted as clerk, and took minutes in writing of the proceedings of the meeting; and that such minutes were never copied into any book, and have been lost or destroyed.

We are of opinion, that this testimony was competent. The written minutes of the clerk were, until copied into the regular book of records, if there was one, the records of the meeting. If produced, they would be the proper evidence of the proceedings of the meeting. But as they have been lost or destroyed, the case is brought within the rule that paroi testimony is admissible to prove the contents of the record. Pease v. Smith, 24 Pick. 122.

The plaintiff’s testimony tends to prove that Winn was elected treasurer at a meeting apparently regular. The objection that he does not prove that the warrant was duly issued and served, cannot prevail.

It is not distinctly stated in the report that the warrant has been lost, but it is a fair inference that it has been. If so, paroi testimony of its contents and service was admissible, and the testimony introduced was sufficient to justify a finding that it was duly issued and served. If not lost, it is in the custody of the defendants and they can produce it; and we do not think that, in a case like this, it is necessary for the plaintiff, in order to make out a primd facie case, to prove the regularity of the steps preceding the meeting. The presumption is that the meeting, being apparently legal and regular, was duly called and held, unless something appears to the contrary. Thayer v. Stearns, 1 Pick. 109. Gilmore v. Holt, 4 Pick. 258. Narragansett Bank v. Atlantic Silk Co. 3 Met. 282.

But the defendants contend that the treasurer had no authority to employ the plaintiff on behalf of the parish. We think otherwise. The treasurer has charge, by virtue of his office, of the notes and other securities belonging to the parish. It is his duty to collect them ; and he has the incidental power to commence a suit on them, when necessary, and for this purpose to employ counsel.

The result is, that, according to the terms of the report, the verdict is to be set aside and judgment entered for the plaintiff.

Judgment for the plaintiff.