Glidden v. Town of Unity

30 N.H. 104

• Court: Superior Court of New Hampshire
• Decided: July 15, 1855
• Status: Published

Opinion

Bell, J.

The authority of overseers to bind out the children of poor persons, is found in section 5 of chapter 66 of the Revised Statutes. “ The overseers of the poor in any town ” “ may set to work in the workhouse or elsewhere, or bind out as apprentices, all children residing in their respective towns, who are not employed in some lawful business, and whose parents are unable or neglect to maintain them;”

The first question which arises in the case before us is, whether the overseer of the town of Unity had authority to bind out the boy, Albion Dyke. This power is derived, if it exists in the case, from the statute, and the acts of the overseer, in any other cases than those authorized, are merely void. The authority is to be strictly construed, because it is in derogation of common right. The children who are thus liable to be bound out, must be, first, residents of the town ; second, who are not employed in any lawful business ; and third, whose parents are unable or neglect to maintain them. These facts must be proved, whenever the validity of the indentures is called in question. The nature of the proof to be produced, may depend something upon the party who calls for it. If that person has, at any time, deliberately admitted the facts‘required to confer the authority in any way, as orally, in writing, under seal or on record, that admission is evidence against him, prima facie, sufficient, though it may be liable to be contradicted or disproved. Smith v. Taylor, 4 B. & P. 210; Radfard v. McIntosh, 3 D. & E. 632; Peacock v. Harris, 10 East 104; Horn v. Whittier, 6 N. H. Rep. 89; Ford v. Grey, 6 Mod. 44; S. C. 1 Salk. 285; Com. Dig. Ev. B. 5. It is on such evidence the defendants rely in this case, They produce the indenture executed by the plaintiff, in which the facts required to give this authority to the overseer are recited. They say this is proof enough for our purpose for the present, until something is shown to the contrary. And no evidence of that kind was offered.

“ Admissions,” says Phillips, (Ev. 367,) “ of a party by deed under seal are entitled to great weight, on account of the deliberation implied by the nature of the instrument, if they do not even exclude any contrary statement.” “ It has laid down, apparently without sufficiently .adverting to the circumstance of the deed being used by a party to it, or to the fact of its being pleaded by way of estoppel or not, that a party who executes a deed is precluded from saying that the facts stated in the deed are not truly stated. But it seems that a party to a deed may contradict it in an action between himself and a stranger to it.” This is the position of the plaintiff here, as to the proof of the facts necessary to authorize the overseer to bind out; the admission is evidence, but liable to be met and disproved by contradictory evidence.

It is said that this evidence is introduced by way of estoppel, and it should not be received under the general issue; it should have been pleaded. But we understand that there is no estoppel between a party to a deed and a mere stranger, which is this case. Wilkins v. Dingley, 16 Shep. 73; Averill v. Wilson, 4 Barb. 189 ; Sparrow v. Kingman, 1 Coms. 248; Co. Lift. 352 a.; Com. Dig. Estop. C.

Though the overseer is a town officer, and, for many purposes, is an agent for the town, yet in cases of this kind he acts by virtue of statutory powers, conferred directly upon himself, and not in any way as an agent or servant of the town. The town itself had no power, in any case relating to the binding out of apprentices, and, consequently, could confer none. They are no parties to the acts of the overseer, in such cases, neither are they in any way bound by them. To the indentures the town was a mere stranger.

If they had been a party, and might have used the deed as an estoppel, by pleading it in due season, still as they have not done so, they have, at most, lost the benefit of its conclusive character as an estoppel, and not the advantage of its weight in evidence as an admission.

It is not easy to see how a plea of estoppel could have been framed to this action ; and if the party had no opportunity to plead it, he would have had all the benefit of the estoppel, when offered in evidence, without pleading. Isaacs v. Clark, 12 Vermont Rep. 692; Wight v. Butter, 6 Wend. 284; Trevivan v. Lawrence, 1 Salk. 277.

It is not, however, necessary for us to pursue this point, for it is not claimed by the plaintiff that there is any estoppel here ; and we have examined the caseto find the grounds on which it is suggested that this evidence was offered, substantially, as an estoppel, without success; neither do we discover any foundation for the suggestion that the court, substantially, ruled that it was so offered. As we understand the case, it was offered simply as competent evidence, as an admission of the party tending to prove the facts recited.

It-is suggested, in the argument for the plaintiff, that it should be proved that an inquiry into and adjudication upon these facts, with due notice to the parties concerned, (the minor and his parents,) was had, before the binding out can be legal and valid, or obligatory on any body.

We have carefully examined the case of Russell v. Morse, 19 Pick. 358, cited in support of this position, and it seems to us to fall far short of sustaining the position of the argument. That the parties interested are entitled to a full hearing upon the facts necessary to give validity to such an indenture, is quite clear, but we do not understand that overseers of the poor are vested with any power to adjudicate upon this question in any way to affect the rights of such parties. It is nowhere said in our statutes, nor in any of the long lists of enactments from which our legislation is borrowed, that these officers are to exercise any judicial powers. No mode is provided for calling parties before them, nor for appealing from their decisions. And we are unable to satisfy ourselves that the Legislature could have intended to invest any power to conclude the rights of parties in such a matter as this, in such a class of officers, deciding, without legal knowledge, on the law, and without a jury, upon the facts, and without appeal or revision. We think it clear that the hearing to which parties are entitled, is one before the ordinary courts of the State, in every case where the validity of such indentures may come in question.

The plaintiff next takes the ground that, admitting the original validity of these indentures, they are no longer in force, because they have been waived by the overseers of the poor, the defendants’ agents.

There are several objections to this position. The overseers, in making such indentures, act as public officers, in the discharge of a public duty, and not chiefly, if at all, as agents of the town. Their duty, under the statute, is discharged when the indentures are made, and they have no further duty and no further power than to see* that the contract is executed in good faith towards the boy. They have themselves no interest and can release none. The town is not a party, and neither they nor their agents can affect the validity of the agreement by any release they can make. The-statute has provided a mode by which the master or the apprentice may be discharged from the indenture, (Eev. Stat. ch. 66, § 6, and ch. 151, § 7, &c.;) but the release of the overseers or of the town cannot discharge either from their obligations to the other.

The covenants, in such indentures, are held to be independent. They are not discharged by any failure to perform their part of the contract, because of the gross injustice of allowing a party to discharge himself of all the really valuable and important parts of his duties, by reason of some trivial failure on the other side. And the same reason applies with increased force to forbid a party to such a contract, who has no interest, to discharge those who are interested, from doing their duties. The minor himself is incompetent to act, and his situation would be pitiable indeed, if, after having served faithfully the entire term of his apprenticeship, he should find that the day before, the overseers had seen fit to discharge or release his indentures, and his claim was gone to the winds.

Provision is made, as has been before remarked, for the discharge of such indentures, upon application to a disinterested judicial tribunal, and after a full hearing of all parties who are interested. It being, then, clear that neither the town nor the overseers have any power to release or discharge the master from any of the obligations of his contract, their waiver, either express or implied, can have no greater effect. It may not, however, be amiss to observe that we have failed to notice in our books any doctrine relating to waiver as a defence to a sealed instrument.

The duties of the overseers to afford relief to all persons found within their town, who are poor and stand in need of relief, are clear. It'matters little what may be the duties or obligations of others, whether towns or individuals, by nature, by contract, or by statute ; if the person is found poor and standing in need of relief, it is to be furnished to him, and it is to be continued until the need of it ceases. Rev. Stat. ch. 70, § 1; Otis v. Strafford, 10 N. H. Rep. 352. As a necessary consequence of this duty, they have the power to procure necessaries for those who need them, and to make valid contracts with others to furnish such necessaries, and their towns are bound by their contracts. See Peterborough v. Lancaster, 14 N. H. Rep. 382. So far as any contract proper for them to make is concerned, it may be made with any person who is competent to bind himself by a valid agreement. And there was nothing in the case of this plaintiff, so far as appears by the case, to preclude such a contract with him. The effect of every contract is, to some extent, varied by circumstances, and it may prove, as to any contract, however valid in itself, that for reasons extrinsic to the contract, it is not binding upon one or both of the parties. That is the position taken here. The contract is admitted to be in itself reasonable and proper; but it is alleged that, owing to certain duties, which this plaintiff had before assumed towards this boy, it does not operate to bind the town, and the case cited by the defendants’ counsel in 16 Eng. L. & E. Rep. 501, and the cases referred to in a note there, go far to show that a contract to pay a man for doing what he is at the time under obligations to do, is not binding. If the town should now be compelled to pay the plaintiff’s claim, it is very clear that, if the plaintiff’s contract to support this boy is now binding, justice requires that, in some form, they should have redress against him, for the amount which they had been compelled to pay, just as they ought if they had been compelled to pay to a third person. Such circuity of action the law always avoids.

This brings us to the point upon which this case turns in our minds, which is the construction of the indentures. The covenants of the plaintiff are all comprised in a single sentence, at the close of which is this unusual, but, perhaps, not unreasonable proviso : “ providing said minor shall continue to be a healthy boy and a faithful servant during his minority.” If any reasonable objection existed against this condition, the position of the defendants does not enable him to take advantage of it, since its effect would, in that case, be to annul the indentures on which their defence rests.

It appears that in August, 1850, the boy received a very severe injury, which endangered his life, and confined him to his bed for several months. And though not expressly so stated, it seems to be treated in the argument as case of permanent disability, such as would come within the language of the proviso. Taking that to be the correct view of the facts, the question then arises how far does this proviso affect the covenants of the plaintiff. The plaintiff contends that it extends to all the covenants on his part, while the defendants contend that it applies only to the covenants for money and clothing at the close of the preceding sentence. And we think there is nothing in the form of the expression and nothing in the nature of the provisions, which would naturally limit the effect of this proviso to the final clauses of the plaintiff’s agreement, or which, in any way, renders it less applicable to the clauses which precede them. As we read it, we understand this proviso to mean a permanent loss of health, (Starksborough v. Hinesborongh, 15 Vt. Rep. 1 Slade, 200,) and to be a condition applying to the whole [contract. If, then, that proviso had failed, the contract on the part of the plaintiff had all failed with it, and the obligation of the plaintiff to support the boy had ceased. The only objection to the obligation of the contract made with the plaintiff, by the overseers of the poor on behalf of the town, is obviated, and the plaintiff’s right to recover became complete.

If there was doubt upon this point of the failure of the proviso, that should have been submitted to the jury. The question, too, as to the actual contract, made by the selectmen of Unity with the plaintiff, seems not to have been passed upon, though these, upon the view we take of the law, were the only points material to be settled.

As upon the questions of law raised upon the indentures, we think the defendants have no valid defence, but might be charged, if the facts relied on by the plaintiff" were supported in proof, the verdiet must be set aside, and the case submitted to the jury.