Warren Borough v. Daum

| Pa. | May 17, 1873

The opinion of the court was delivered, May 17th 1873, by

Mbrcur, J.

The learned judge put this case upon the true ground when he said to the jury, “ the right of the plaintiff to recover depends entirely upon whether or not a valid contract exists between him and the defendant.” Such being the law of the case, the well recognised rules of evidence necessary to.establish a contract, must be applied.

We are unable to discover in the resolution of 11th of February 1864, any evidence that the borough of Warren offered a bounty to volunteers. It merely declared that the authorities would levy a tax sufficient for that general purpose. It was an act between the borough authorities and the tax-payers only. It was no offer to volunteers. It is true, it contemplated that the fund should subsequently be used in procuring volunteers at such prices as might be agreed upon, not exceeding three hundred dollars. It gave no one any right to say, I will enlist, and you shall pay me three hundred dollars. That the authorities so understood it, is shown by the fact that upon each, the 13th and 22d of February 1864, they passed a resolution to issue bonds for the same purpose. The passage of these resolutions was the first step towards putting the borough in a condition to justify it in offering bounties. It was providing the funds in advance of their appropriation. The making of contracts with persons to enlist, is entirely a different matter. To hold that this resolution offered a bounty to volunteers, is to extend it beyond its true scope and meaning. It did not, as was said in Foulke v. West Bethlehem Township, 3 P. F. Smith 221, ex proprio vigore, impose a liability upon the borough to pay any bounty. The first assignment of error is therefore sustained.

The other assignments of error may be considered together.

It appears by the muster-roll that when Daum was mustered into service on the 29th February 1864, at Martinsburg, Va., he declared his residence tobe “Warren, Warren county, Pennsylvania.” There is no evidence that he, at the time of his re-enlistment, said or did anything indicating an intention to enlist to help fill the quota of the defendant, or to be credited thereto. The evidence is that he first gave notice of any such claim a short time before the commencement of this suit, which was in January 1871. It is true, the second section of the Act of May 1st 1866, Pamph. L. 114, provides that “the place'of residence named in the reenlistment and muster-in rolls, shall, in the absence of other evidence, be considered the place of credit.” This act, passed .more than two years after his re-enlistment,-throws no light upon his actual intention at the time of said re-enlistment. If the transaction, at the time, lacked the ingredients essentially necessary to create the contract relation, this subsequent Act of Assembly could not create one which would be obligatory upon the parties.

The learned judge thought the jury, judging of Daum’s human nature by that of other human beings, might infer that he re-enlisted for a bounty, to be paid by some locality, and in the absence of any evidence that he re-enlisted for any other place, they might infer he enlisted to the credit of the Borough of Warren. This is carrying the doctrine of presumption too far. It is building upon a too uncertain foundation. The result is, that the superstructure is as shadowy as the base upon which it rests. With much stronger probability, it might be said, that the reasonable and ordinary workings of the human mind would have induced him to have informed the defendant within less than six years, of some fact indicating a real or pretended claim.

The evidence shows that the borough authorities never made any contract with Daum personally; that he did not notify them that he would accept, or had accepted the general offer which they had made; they had no notice of his enlistment; they filled their quotas with other men, and never received any credit or allowance for Daum. The act of his re-enlistment, remote from the defendant below, did not carry any notice of itself. Upon general principles, when one seeks to establish a contract predicated of a general proposal 'made by the other party, he must show that the one making the proposal was duly notified of the acceptance thereof. Notice of this acceptance is necessary, even when a distinct proposition is made by one to another: Emerson v. Graff, 5 Casey 358. We see nothing in'this case to take it out of the general rule: Washington County v. Berwick, 6 P. F. Smith 466; Brecknock School District v. Frankhouser, 8 Id. 380.

The errors are sustained. Judgment reversed.