Chandler v. Town of Bristol

45 Vt. 330

• Court: Supreme Court of Vermont
• Decided: January 15, 1873
• Status: Published

Opinion

The opinion of the court was delivered by

Peck, J.

It is insisted on the part of the defense that there was no evidence tending to show a contract between the plaintiff and the town for the payment of a bounty. But when the orderly sergeant of the company in which the plaintiff was serving in the field as a soldier in Virginia, wrote from there to Rider, selectman of Bristol, “ inquiring what bounty, the town of Bristol would pay to volunteers who wvuld enlist to the credit of that town,” it must have been understood by Rider from that letter that the information was wanted with the view of being acted on by soldiers then in the field, by re-enlistment to the credit of that town ; and when that selectman replied to that letter, “ stating that Bristol would pay two hundred and fifty dollars to such volunteers as should so enlist and be credited to said Bristol,” it must have been intended as a general offer to such soldiers then in the field as would comply with it; at least, to the extent of the authority given by vote of the town, and that it might be so acted on ; and the plaintiff had a right so to understand it, and act upon it. Such has been the construction of language substantially like this, when incorporated in the vote of a town, although not in answer to any application on the subject. When the plaintiff afterwards heard the letter from that selectman read in the presence and hearing of . said company, and relying upon the statements therein, and expecting to receive said bounty, did thereupon re-enlist, “ on the 15th December, 1863, and caused his name to be credited to said town of Bristol,” he acted on the faith of, and in compliance with, the offer; and when, on the 24th or 25th of the same December, he was mustered in to the credit of Bristol,"under date of the 16th of the same December, he had complied with all the terms expressed in the offer.

But it is insisted that the plaintiff, at the time of his enlistment, having reserved the right to change his credit to some other town before being mustered in, and having, within that time, directed the proper officer to change it to Starksboro, and having supposed during his service that it was so changed, thereby deprived himself of all claim on Bristol, which he otherwise might have had, although it was never changed, but remained to the credit of Bristol, and enured to its benefit. It appears that re-enlisted men had the right to change their credit after enlistment, before being mustered in. But the reservation of such right, unexercised, does not prejudice the plaintiff’s claim. The change of the credit required an act to be done, to be evidenced by - the record. A mere mental conclusion, or simple volition on the part of the plaintiff, was ineffectual to change the rights of the parties; nor did the direction t® the proper officer to change the credit, give any additional force to such volition, as nothing was done to effect the change, or to prejudice the defendant in the full benefit of the credit as given in the enlistment; but, on the contrary, by the muster-in, the credit was irrevocably fixed to the benefit of the defendant town. If A. and B. enter into contract, with a right reserved to B. to rescind by giving notice to that effect within a specified time, and B., within the specified time, directs his agent to give such' notice, which the agent wholly neglects to do; A. would thereby acquire no right to treat the contract as rescinded, against the will of B., even if B. had supposed, up to the time fixed for the performance of the contract, that the notice requisite to rescind the contract had been given as he directed. And most clearly the defendant cannot in this case so treat the reservation of the right to the plaintiff to withhold his credit, between the enlistment and the muster-in, from the defendant, and have it placed to another town, from the simple fact that he directed it to be so done, when it was never done, and when the defendant has received the benefit of the full performance by the plaintiff. Davis v. Landgrove, 43 Vt. 442, is in point, as the same principle applies to a general offer made by the selectmen, by authority of the town, as to a general offer by vote of the town. Williams v. Carwardine, 4 B. & Ad. 621; S. C. 5 C. & P. 566.

But, it is claimed that it does not appear - that the plaintiff applied on the quota of the town under the call for 300,000 men referred to in the vote. The exceptions are not very explicit in relation to this; but it is stated that after the plaintiff was discharged from service, in 1865, he “ applied to the town of Bristol, which had received the benefit of his credit, and that Bristol refused to pay the bounty.” We understand this as a statement that the town of Bristol received the benefit of the plaintiff’s credit; and, in the absence of any evidence that he applied on any other quota, or that the town had any other quota to fill, we think it tends to show that he applied on the quota in question. It is also claimed on the part of the defense, that the plaintiff did not give seasonable notice to the town of his enlistment. But if the town had the benefit of his credit on the quota referred to in the vote, the inference is, in the absence of evidence to the contrary, that' the town suffered no. detriment for-want of earlier notice; and, if not, earlier notice was not necessary to the right of the plaintiff to‘recover.

The conclusion is that the county court erred in directing a verdict for the defendant. Judgment reversed, and new trial granted.