Greenland v. Weeks

49 N.H. 472

Opinion

Bellows, C. J.

If the selectmen, assuming to act as agents of the town, paid its money to obtain recruits to be counted on the quota of the town, and the town assented to such payment, and took the benefit of it, it cannot recover back the money so paid of the recruits, even although the amount exceeded the amount the town was by law authorized to pay, and although the payment of such excess, was prohibited under a penalty, by postive law.

In respect to the joart paid before the imposition of the penalty, that could not be recover back, because it was paid voluntarily and without any mistake of fact, and it is not against conscience for the recruit to retain it — and the town would have the benefit of the consideration, for which the money was paid.

In respect to the portion paid after such payment was prohibited by a penalty, the town must be regarded as in pari delicto; and this is an additional objection to such a recovery.

A payment by the agents of the town with its assent, is a payment by the town, and the contract having been fully executed, the courts will not lend their aid to the recovery of the money, so paid in violation of law. Welsh v. Cutler, 44 N. H. 561; and cases cited, but leave the parties where they find them. See 2, Smith’s Lead. Ca. 457 ; Notes to Merryweather v. Nixon, and cases cited : Broome’s Legal Maxims, 371.

The question then is, was this money paid over to the recruits, with the assent of the town. On this point the first enquiry, is as to the vote of the town of June 13th, 1864.

That vote in terms, authorized the selectmen to procure volunteers, for all quotas of this town hereafter to be made in season to avoid a draft, and at as low a rate, as possible up to the second Tuesday of March next.

At this time, the law of July 9, 1862, ch. 2580 was in force, and by section 3, the several towns and cities were empowered to raise and appropriate money to encourage voluntary enlistments in the war. This it will be pei'ceived, applies to voluntary enlistments alone, and there is no limitation as to the amount. By law of July 10, 1863, towns and cities are authorized, to raise and appropriate money as bounty to members of the enrolled militia of the state from their respective towns and cities, who may be drafted into the army, or to the substitutes of such conscripts, with the provision that the bounty shall not exceed $300 to such conscript or substitute.

By law of July 16, 1864, ch. 2868, section 4, cities and towns are authorized to pay a bounty to each soldier mustered into the service of the United States, to till the quota of such town or city, whether he voluntarily enlisted, or volunteered as a substitute for a drafted or enrolled man, not exceeding in amount §300 for a three years man ; and may also pay a bounty not exceeding §200 to each drafted man. Section sixth, imposes a penalty upon any city, town, place or agent who shall pay a greater sum, than is authorized by the act.

When this vote of June 13,1864, was passed, there ivas no limitation upon the authority to pay bounties to volunteers; and the vote applied to volunteers alone. At the time the vote was passed, then, the selectmen were only limited by the duty to obtain volunteers, at as low a rate as possible. For such volunteers as were obtained and paid before July 16, 1864, when all former provisions on the subject were repealed, the selectmen were authorized to pay the sums charged if they could not obtain the recruits for less. This law of July 16, 18(54, imposed a penalty for paying more than §300 bounty, and after that, the selectmen could not legally pay more, nor could they rightfully regard the vote as an authority, or request to pay more. As to the amounts paid for substitutes for five drafted men, those came within the provisions of the law of July 10, 1863, which is confined to drafted or conscripted men, or substitutes of such. As to those, also, the vote cannot be regarded as authorizing, or requesting the selectmen, to pay more than the amounts fixed by the law.

It becomes necessary, then, to consider the question of ratification. The enquiry then is, as to the effect of the subsequent votes of the town, upon the subject of these payments.

It appears that the account of these payments, was presented to the town, approved by auditors, appointed for that purpose, and accepted by a formal vote of the town. Under an article in the warrant, to see what action the town will take in relation to the debts contracted by the selectmen for the purpose of procuring recruits, to fill the quota of the town, it was voted, to assume the debt as it now stands.

In addition to this, the selectmen for 1866-7 presented to the Commissioners appointed to ascertain the expenditures of the several towns for war purposes, the items of the defendants’ accounts ■which were allowed, except some trilling amounts. These votes and acts, I think must be regarded as a ratification of the authority assumed by the selectmen, to make these payments ; so that those payments, must bo hold to have been made with the assent of the town.

The selectmen in these acts, assumed tebe the agents of the town, paid out its money in this way, and with the full knowledge of what was done, the town ratified these acts, and allowed the accounts of the selectmen for the money so paid. This subsequent ratification, is upon well established principles, equivalent to an antecedent request. Low v. C. & P. Rivers R. R., 45 N. H. 378, and cases cited.

In this point ot view, the recruit must be regarded, as having receceived the money so paid him, with the assent of the town, and as the contract was fully executed, the town could maintain no action against the recruit, to recover back the money. Again, the money was paid to obtain recruits, to be counted on the quota of the town. If illegally paid by the selectmen, and without the request of the town or by its assent, then it would seem clear, that when it was brought to its notice, the town might repudiate the contract, reject its benefits, and recover of the recruit the amount so illegally paid.

But if instead of that, it retained the benefits of the contract, having notice of the way payment was made, the town must be deemed to have adopted the payments, by which the benefits were gained, upon the principle that having chosen to accept the benefits of a contract made by one assuming- to act as its agent, it must take the burdens at the same time. As, when one without authority, buys goods for another, who afterwards accepts them, this acceptance is equivalent to an antecedent request, and the party will be bound to pay the price. 1 Williams’ Saunders, 264, n. 1; Keyser v. School District, 35 N. H. 477 ; Low v. Railroad, before cited. In that case, services were rendered before the corporation was organized; but after the organization it accepted the benefits arising from those services, with notice that the services were so rendered upon the understanding with the grantees of the charter, that they were to be paid for; and it was held, that such acceptance was equivalent to an antecedent request; even, although the corporation, at that time, had no capacity to make such request.

These views, lead us to the conclusion, that these contracts, were made with the recruits and the money paid to them, with the assent of the town, and as the contracts were fully executed, the money cannot be recovered back from the recruits by the town, upon the ground that the town had no legal right to pay so much — unless it can be shown, that these municipal corporations do not, in this respect, stand like individuals : and such a position clearly cannot be sustained.

It is very well settled in New Hampshire, that the courts will not enforce against a town an executory contract, which the town has by law no power to make. Wadsworth v. Henniker, 35 N. H. 189 ; Gove v. Epping, 41 N. H. 539.

So equity will restrain the collection of a tax voted by the town without authority, or for an illegal purpose, upon the application of a tax-payer who has not assented to such tax. Brown v. Marsh, 21 N. H. 81; and will restrain the payment of the money, when collected for such illegal or unauthorized purpose. Merrill v. Plainfield, 45 N. H. 126. Gates v. Hancock, 45 N. H. 528, was a bill in equity to compel the selectmen to pay into the treasury of the town, a sum of money applied by them to pay tbe expenses of defending themselves against an indictment for some misconduct in making up the check-list, the town having voted to allow them to do so. A demurrer to such a bill was over-ruled. In this case, the plaintiffs were tax-payers, audit was alleged, that they never assented to this vote, and that the vote was procured by the fraud of the defendants, and a majority of the voters combining.

It will be perceived, that these cases do not touch the question raised here. In all the cases but Gates v. Hancock, the contracts remained executory, and the attempts were either to enforce them, or to prevent their being executed.

In Gates v. Hancock, the bill was brought by tax-payers, who alleged that they never assented to the acts complained of.

Those decisions do not reach the general question raised in this case, and that is'whether a town can recover back money which it has voluntarily paid upon a contract which it was not authorized to make, or which was prohibited by law, payment having been made ■without mistake, or fraud, and the town having received a valuable consideration for it.

In the case of an individual, it is very clear, that an action would not lie in such case, unless where the particular contract is prohibited, in order to protect one class of men from another class, as in the case of usury, and the like, or where the money is extorted, by any undue advantage taken of a party’s situation, contrary to laws made for the protection of persons under those circumstances. See Smith’s Lead Cases, 2 vol. 395.

So far as regards the cases, where there was merely the absence of power to make such contracts, and the payments were purely voluntary and without fraud or mistake of fact, they cannot be recalled. Where the contracts were prohibited under a penalty, the town was very clearly in pari delicto, and so melior conditio possedentis.

If upon any view of the case, the town could be entitled to recall the money paid, it would be contrary to the plainest principles of justice as well as the settled rules of law, to allow it to be done without restoring the consideration.

If, then, by the action of the town, the recruit is entitled to hold the money so paid it is not easy to discover any principle of law that can enable the town to recover the money of' the selectmen. The money was paid by the selectmen assuming to act as the agents of the town, and for the benefit of the town alone. The town has assented to it, and made it the money of the recruits; and it is difficult to see how it can at the same time, be regarded as money of the town in the hands of its agents. Even if the payment was illegal, the town by its assent, has parted with its property in the money, and it would be monstrous to compel the agents to pay the amount out of their own pockets, when the amount was expended by them for the sole benefit of the town and with its assent.

Again, the selectmen, presented their accounts to the town, claiming the amounts so paid. The town by a solemn vote allowed the accounts. This was substantially a payment of the amount, by the application of money in the hands of the selectmen, and is the same substantially, as if the town had actually paid over the money at that time.

So it has much the character of an account stated, that is, an account presented, examined and approved by auditors and deliberately agreed to by the town. See 2 Greenl. Ev. sec. 126 ; Morse v. Allen, 44 N. H. 33.

In Bramston v. Robins, 4 Bingh. 11, a tenant in paying his rent, had claimed the allowance of land-tax paid by him, and the landlord for many 'years, had credited it in his receipts, though the amount was greater than the landlord was liable to pay ; yet as the landlord, had knowledge, or the means of knowledge of all the facts, it was held, that he could not distrain for the amount erroneously allowed, the court holding it to be an established principle, that if money be given or paid with a full knowledge of all circumstances at the time of payment, it cannot be recovered by the payer, holding that a settlement in account, is the same thing as payment, citing Skyring v, Greenwood & a., 4 B. & C. 281, which is similar. So in 2, Smith’s Leading Cases 457, it is said, that the statement of an account in which tbe money due by the terms of the illegal contract, is allowed, seems for this purpose equivalent to payment of it, citing Owens v. Denton, 1 C. Mees and Rosc. 712; 5 Tyrwh. 359.

The raising of money and paying of bounties, comes within the general power of the towns. The mode of exercising it is regulated by statute. It can incur the penally affixed to the offence of paying more than the amount prescribed by law for bounties, just the same as an agent, and if it actually executes such a contract and pays over the money, and in that way obtains a recruit to be counted on its quota, I can see no reason why the town as such, should have the right to recall the money any more than a natural person, or any other corporation.

The statute, evidently contemplates the town, as having the power to act as an individual, and if it does so act, there is no reason why it should not bo bound by the ordinary rules, that govern individuals. Towns are subject to the same implications from their corporate acts, or the acts of their agents within the scope of their authority, without either vote, deed, or writing, as in the case of natural persons, 2 Kent, Com. 290; Glidden v. Unity, 33 N. H. 577 ; Baker v. Holderness, 44 N. H. 417. The imposition of the penalty upon the town, necessarily implies, that the town can do the acts, which incur it. Of course it can only act through its agents, and it must be entirely immaterial, whether, it gives its agent previous authority to pay the illegal sum, or subsequently ratifies the assumed authority, and pays the money to such agent.

In both cases, upon well established principles, it is equally the act of the town. The substance of this case, as it stands before us, is that the towm has paid to the defendants, the money illegally paid to the recruits, and so far as the right to recall it is concerned, it stands as if the money had been placed in the hands of the selectmen, with directions to pay it for this illegal purpose, for the benefit of the town alone, and they had done so.

Upon every sound principle of law and morals, the town in such a case is in pari delicto, and cannot recover back the money, which by its own acts has become the money of the recruits, and which they are entitled to retain.

It is like the case of money deposited with a stake-holder, on an illegal wager, and paid over to the winner with the consent of the loser. In such case, it is clear it cannot be recovered back. Howson v. Hancock, 8, T. R. 575.

Oase discharged.