Wheelock v. Town of Hardwick

| Vt. | Aug 15, 1875

The opinion of the court was delivered by

Powers, J.

It is to be observed that the plaintiff’s offer was to prove a conversation with only one of the selectmen, without any suggestion that his associates either authorized or sanctioned wbat be said. It lias been repeatedly held that a minority of the board of selectmen cannot bind the town by their acts, and it would seem to follow that they could not by their admissions.

It is argued that selectmen are agents of the town, and that their admissions come within the rule that admissions made by agents are binding upon their principal. That rule of evidence requires that the admissions be made in the doing• of some act within the scope of the agency — the theory being that the statement limits or qualifies the act. If the statement is made after the act, it is mere narration, and cannot be received. Judo-vine was doing no official act as selectman when he had the 'talk referred to, and even if the whole board had been present under the same circumstances, what was said amounted, at best, to mere hearsay matter.

The defendant is not estopped from disputing the; validity of the notice given by the plaintiff of his injury. It does not appear that the plaintiff did or omitted any act in relation to his notice in consequence of what was said to him by Judevine. In fact, the subject-matter of the notice was not alluded to by the parties.

Judgment affirmed.