Bay v. Cook

22 N.J.L. 343

• Court: Supreme Court of New Jersey
• Decided: January 15, 1850
• Status: Published

Opinion

Nevitts, J.

This case is presented to us in voluminous form, embracing ten bills of exceptions, taken and sealed at the trial, and the assignment of twenty-three errors in the proceedings of the court below. To consider all these separately would lead to a more protracted discussion than the law or merits of the case, in my opinion, call for. I will, therefore, briefly state so much of the case as I deem necessary for a full understanding of the questions really involved in it, and which we are called to decide.

The defendant in error, a practising physician, brought his action against the plaintiff in error, who was an overseer of the poor for the township of Washington, in the county of Morris, to recover for medicine, attendance, and nursing, found and provided for one William F. Sharp, a pauper, whose legal settlement was in said township. The pauper fell sick, and became a public charge in the township of Independence, in the county of Warren, and an order of removal was legally made out, to have him and his family removed to the township where his legal settlement was. But being too sick to be removed, the plaintiff in error employed the defendant to administer to his necessities, and afford him such medicine, attendance, and nursing as his ease might require. It is under this employment that the services were rendered for which this action is brought. The charges in the plaintiff’s book were made against Andrew Bay, overseen* of the poor of Washington township, Morris county. It further appears, that in the county of Morris there is a county poor house, where, by law, the poor of said county are to be sent, and kept at the expense of the county. And it also appears that the plaintiff below first brought his suit against “ the Inhabitants of Washington ” for the recovery of his bill, but was defeated in that action, on the ground, that the township was not liable, no order for relief having been made, as required by the “ act for the settlement of the poor.”

With this brief statement of the material facts in the case, I proceed to consider such of the errors assigned as are entitled to weight in our final decision.

In the first place, it is insisted that the plaintiff’s remedy, if he has one, is against the trustees of the county poor house, or if not against them, then against the inhabitants of the township of Washington, where the pauper had bis legal settlement, and not against the defendant, and, more especially, not against him in his individual capacity. That the defendant, being an overseer of the poor, was the agent both of the trustees of the poor house and of the township and in the employment of the plaintiff, acted in that capacity, and with the knowledge of the plaintiff, and therefore is not personally liable. It is clear that the services and attendance for which the action is brought were rendered by the plaintiff: that they were rendered to a pauper, legally chargeable to the township of W., and that they were rendered at the instance of the defendant. It will not, therefore, be denied that the plaintiff is entitled to remuneration for such services from some source, and that the law ought to provide him a remedy. Is that remedy against the trustees of the poor house or the board of chosen freeholders of the county, who, by statute, have the direction, superintendence, and government of such poor house? I think not. Eor although the statute provides that the poor of the county shall be sent to, and kept in such poor house, at the expense of the county, this pauper had not been sent there, and had not been recognised by I he freeholder's, or their trustees or officers, as chargeable to the county when the services were performed, nor did the defendant act as their agent, nor was he their agent in employing the plaintiff, nor was there any evidence that the plaintiff gave the credit to the board of freeholders, or that the services were rendered upon their credit. It is true that the trustees, on some occasion after the bill bad been contracted, offered the plaintiff to pay it, on condition that he would abate about two-thirds of the amount; but such offer, not being accepted, would in no wise make them liable, or give the plaintiff a remedy against them. It was voluntary on their part, without legal consideration, and the plaintiff was not bound to accept it; and if his charges were fair and lawful, the offer was an unworthy attempt at a compromise.

Has the plaintiff a legal remedy against the township ? This may be answered by the fact, that a court of competent jurisdiction has already decided that the township was not liable. But if that question were still open, I am of opinion that the court was right in that decision. By the ninth section of the <£ act for the relief and settlement of the poor,” Rev. Stat. 882, it is provided, “ that on application for relief by any poor person to any overseer, the latter shall apply to a jusiice, who, with the overseer, shall inquire into the state and circumstances of such poor person; and if it appear to said j ustice that he is in such circumstances as to deserve relief, the justice shall give an order in writing to such overseer to make such allowance, &e.; and the said overseer shall make no other or further allowance.” The township cannot be liable, then, without such order lor the payment of the plaintiff’s bill. In the case of Perth Am-boy ads. Smith, 4 Harr. 58, the court said, “ It may be questionable whether in any case, however emergent, an overseer of the poor can make any advances or engagements upon the credit of the township, without the previous order of a justice of the peace.” And it is there further said, “ that such is the doctrine held by the New York courts, in several cases, under a like statute.”

The question then recurs, is the defendant legally responsible under the circumstances of this ease? He contends that he is not, because the credit was not given to him in his individual and personal character ; that the charges were made against him in his official capacity, as overseer of the poor, by the plaintiff, and if liable at all, it is in such official capacity; and secondly, that being a public agent of the township, and such agency being known to the plaintiff at the time of his employment, and the subject matter of the contract being a provision for a pauper of the township, the township must be liable, and not he. Neither of these answers can avail him. The charge was substantially against the defendant, and the addition of the words “ overseer of the poor ” may be esteemed as descriptive of the person. The defendant employed the plaintiff to l’ender the service, and required that it should be rendered with special care, and the plaintiff had a right to charge him in the manner he did, and to look to him personally for compensation, unless the latter can defend himself on the ground of his public agency. This, I apprehend, ho cannot do. If an agent, either public or private, exceeds his authority in making a contract, he is personally liable for its performance, for the law will esteem him as acting in his individual capacity, rather than suffer the contract to fail. It is not the business of the party with whom such contract is made to inquire whether the professed agent is acting within or without the scope of his agency. I fully approve the principles laid down by Justice Sutherland, in the case of Mott v. Hinks, 1 Cow. 536, “that if a person undertake to contract, as agent, for an individual or corporation, and contracts in a manner which is not legally binding upon his principal, he is personally responsible; and the agent, when sued apon such contract, can exonerate himself from personal responsibility only by showing his authority to bind those for whom he has undertaken to act.” In this case the defendant failed to make his principal legally liable, by omitting to obtain the order for relief, as required by the statute; and, upon the principles above mentioned, must be personally responsible. The action, I drink, was properly brought.

Another exception taken at the trial, and relied upon here for the reversal of this judgment, is, that the account, or book of account, produced at the trial did not correspond with the bill of particulars furnished to the defendant, inasmuch as the bill did not show the charge against hirn to be as “ overseer of the poor.” This is no such variance as was calculated to mislead the defendant. He was sued in his individual capacity, declared against in that capacity, and the form of the entry in the book, at the heading of the account, cannot be material. Even if the charge in the book had been made against the township, I am of opinion that, upon the evidence in this case, as now before us, the plaintiff would have been entitled to recover against the defendant, although in his bill of particulars it was stated as a charge made against the defendant himself.

It is further objected, that the bill or account of the plaintiff is not wholly in the English language, and that it contains charges, without specifying distinctly for what services. In examining the bill of particulars furnished, I find no such defect in language as will vitiate the claim under the statute, which does not prohibit abbreviations, or require every item of charge to be in English. The act requires that the bill of particulars shall be “ in plain English words, or as nearly so as the articles will admit,” and I cannot say that in this respect the act has been violated. The charges of $5, in several instances, embracing services of two or three days, are neither contrary to law nor the practice that prevails with men who keep their books of account at home, while their labor and services are rendered elsewhere. But it must be borne in mind that there was other evidence in support of these charges produced at the trial besides the plaintiff’s books, and the legal inference is, that they were fully maintained.

There are numerous other errors assigned in this case, but they have not been urged in the argument, and on a careful examination of them, they will be found of an extremely technical character, and ought not to prevail against the manifest justice of the verdict and judgment below.

The judgment of the Circuit Court should, in my opinion, be affirmed with costs.

Carpenter, J. Our statute authorizes the board of chosen freeholders of each county, if they deem it necessary, to establish a county poor house, and to make ordinances' and by-laws for its regulation and government. Rev. Stat. 189. A poor house was established in the county of Morris, and by-laws were adopted regulating the admission of the poor of the county, for whose benefit it was intended. These rules, it seems, did not require any formal order of relief after an order of removal; but the overseer of any township, in the county to which a pauper had been removed, was authorized to take such pauper to the poor house without further order. Perhaps, therefore, the general law, as to special orders for the support of paupers and the entries in the overseer’s book, may not in all instances be applicable to a county poor house establishment, being superseded by other provisions. Still each township is primarily liable for the maintenance of its paupers, notwithstanding there may be a county poor house, where, after being sent, they can be maintained. It is only so far as the duty is performed by the county, that the township is relieved from its liability for the support of its poor. But, in order to bind the township, an order of relief is generally necessary, even although there may have been a prior order of removal. It was so held in a suit by this plaintiff (defendant in error) against the township, and he was nonsuited on the trial because unable to show such order. A person may be removed to his place of legal settlement, when only likely to become chargeable elsewhere. Rev. Stat. 886. The order must therefore be obtained, as well to show that relief is necessary, as also to ascertain the amount of relief to be afforded.

An order of removal had been obtained in this case, and the pauper had become chargeable upon the township of Washington ; the overseer, therefore, being- notified, was then bound to provide for his relief. Had the pauper been fit to remove, the duty of the overseer might have been discharged, according to the by-laws referred to, by conveying him immediately 4o the poor house. He was not in a fit state to remove, and it was therefore his duty to sustain him at the place where he was confined by disease. The overseer did provide for the pauper, but he neglected to obtain any order of relief. He requested the plaintiff to attend upon him strictly, and to render those services which were so absolutely necessary in his diseased ami helpless condition. His act would have bound the township, had it been made within the scope of his authority and after obtaining the proper order, blit the officer had no authority to bind the township, except in the mode prescribed by the statute. Now it was the duty of the overseer, and not of the physician, to obtain that order, and made so by 'the express provisions of the statute. Rev. Stat. 882, § 9. The statute, in terms, directs that he should extend relief at the public charge no further than directed by the order; without it, he was to receive no allowance for any money or goods paid or distributed to any poor person. Without the order there could be no resort to the township ; and can it be doubted that the overseer, who directs the services, must be personally accountable ? The services may have been, and probably were performed upon the expectation of remuneration from the public, but resort to the township was unavailing from the default of the overseer. The case is not within the rule which exempts public agents contracting for the government, and when there is no liability on the part of the principal, the agent is himself responsible.

As to the character of the charges in the book, which formed the ground of a subsequent exception, I think a sufficient answer Isas been given to the objection by the counsel of the defendant in error. It does not seem to be necessary that the charges should always be’made in the book on the very day on which rendered ; in many employments this would be impracticable, and I see no difficulty in this case because the services of three days are charged at one time. Nor do I think the statute referred to will exclude the use of ordinary and known abbreviations.

Gbeen, C. J., concurred.

Judgment affirmed,

Cited in Booth v. Wonderly, 7 Vr. 255.