Mudget v. Town of Johnson

42 Vt. 423

Opinion

The opinion of the court was delivered by

Peck, J.

The objection to the vote, urged in argument based on a supposed difference between the vote and the warning, is not well founded. The objection urged in argument is that one is more comprehensive than the other in reference to the class of persons to whom bounties are contemplated to be paid. There is no such difference between “ bounties to supply the quota of the said town under the recent call of the President of the United States for three hundred thousand men to serve in the war,” and “ bounties to volunteers that may hereafter enlist for the war, under the recent call of the President of the United States, including the one that is understood has enlisted,” as to render the vote inoperative. As to the objection made at the trial that the vote was not an open vote, but limited in the number of men by the discretion of the selectmen in raising the money,, we think it is not well taken. That is not the true construction of the vote. Nor is the other objection, that the vote left it to the discretion of the selectmen whether to raise any men or not, and that bounties were to be paid only to such men as the selectmen should enlist, well founded. The warning contained two separate articles, .one to see whether the town would vote to pay the bounties; and the other, “.In case the town should vote to pay such bounties, to raise and provide means for the same.” This question of con-, struction of the vote arises out of the fact that the town at the meeting disposed of both these articles in one vote, by voting the bounties and instructing the selectmen to borrow a sum not exceeding three thousand dollars for that purpose. The vote specifies the amount of bounty to each volunteer and the time of payment, that is, three hundred dollars to be paid each enlisted man when mustered into the service. The construction of the vote is, that the only discretion left to the selectmen was as to the amount of money they should borrow, and that was limited to three thousand dollars ; and that as to the payment of bounties it was such a general offer as a soldier might comply with and thereby entitle himself to the benefit of its provisions, either with or without the intervention of a contract with the selectmen. The town had been notified by the military authorities previous to the vote in question to ■ furnish ten men under the then recent call, although the quota of the town exclusive of surplus credits was more; and the selectmen then and subsequently, during the time material to the questions in this case, understood that ten men were due, and required of the town to be furnished under that call. The legal rights of these parties are the same as if that number of men at least had been actually due from the town, notwithstanding the selectmen, after that call for ten men was filled and after the plaintiff had enlisted and been mustered in to the credit of the town, were notified by the adjutant-general that prior td the mustering in of the ten men the town had a surplus credit over previous calls. It is not material to the case whether the vote is construed as extending to the whole number of the quota of the town under that call exclusive of surplus credits, or whether the ten men are to be regarded as the quota-named in the vote. The other objections to the vote made in the county court are very properly abandoned.

At'the close of the evidence, when the court enquired of the defendants’ counsel if they claimed there was any thing to be submitted to the jury, they claimed to go to the jury only upon the question whether, in fact, the town had notice of the plaintiff’s re-enlistment prior to January 12, 1864, and before the muster in of the ten men which the selectmen procured and caused to be mustered in. The last eight of these ten were mustered in, as tl^ defendants’ evidence tended to show, January 12, 1864. The court ruled that there was nothing in this point to be submitted to the jury, and to this the defendants excepted. It is difficult to see where the evidence is to be found in the case which would justify the finding that the town had notice, in fact, before January 12, 1864, of the plaintiff’s enlistment, as he enlisted and was mustered in to the credit of the town January 5,1864, at New Iberia, Louisiana, and ordinarily it required twelve days for the transmission of a letter, by mail, from there to Johnson, according to the evidence. The notice given by the plaintiff’s father, on the receipt of the letter from the plaintiff, was about the 20th of January, 1864. The court, perhaps, might have been justified in declining to submit tliis question to the jury, upon the ground of the want of evidence tending to prove notice as early as the 12th of January. But we do not put it on that narrow ground, but treat the defendants’ request to go to the jury on that question the same as if they had also in tennsinsisted that the plaintiff could not recover without proof of such notice prior to January 12, 1864, and prior to the mustering in of the men on that day. In this view, if such notice prior to that date was indispensable to the plaintiff’s right to recover, there was error; but if such notice, prior to that date, was not indispensable to the plaintiff’s right of action, then, if there was evidence tending to prove all the facts necessary to a recovery by the plaintiff, the judgment should boaffirmed, notwithstanding there was evidence on the part of the defense tending to disprove some of such necessary facts. The defendants having declined to go to the jury, except upon the question whether there was notice prior to January 12th, virtually concede the other facts material to the plaintiff’s right of action which the evidence tends to establish. It appears, from the testimony of one of the selectmen, a witness on the part of the defendants, that in filling that quota, enlisting the ten men, they, by agreement between themselves, acted separately, but ratified what each of them did in recruiting. The evidence of John Mudgett, the father of the plaintiff, as to writing, just before and just after the vote, to the plaintiff, at the request of Merriam, one of the ^lectmen, to procure the plaintiff to re-enlist to the credit of the defendant town, and proffering him, in behalf of the town, the $800 bounty the town had just voted, and informing him that he wrote at the request of said selectmen; and as to the receipt of the answer from the plaintiff, about the 20th of January, that he liad enlisted to the credit of the town, and immediate notice thereof to Merriam, together with the testimony of the plaintiff as to this correspondence.; the receipt of the letters from his father, and enlisting on tlie faith of the offer of the bounty and request of the selectmen; and as to his action in giving notice to the town that he had so enlisted to its credit in expectation of the bounty, if true, (and, as before, stated, it must be so taken,) show that the plaintiff enlisted by express procurement of the town, under a promise of the bounty of $300 which he was informed the town had voted. This clearly entitles the plaintiff to recover, unless he has lost this right by the culpable neglect of some duty on his part in relation to giving notice to the town of his enlistment to its credit, to the detriment of the town. In view of the evidence as to the time ordinarily required, at that time, for the transmission of a letter between Johnson and New Iberia, where the plaintiff-was, the notice given by the plaintiff’s father, on or about the 20th of January, was as soon as could reasonably bo expected that a letter, after the vote, could be transmitted from Johnson there, the enlistment accomplished, and notice thereof transmitted back; but it is sufficient to say that the contrary can not, as matter of law, be assumed. It appears, affirmatively, that the selectmen made no effort to ascertain whether any enlistment had been made to the credit of their town. They were bound to know it would take time to communicate with the plaintiff and obtain a reply. After the plaintiff had been thus induced to enlist, and be mustered in to the credit of’their town, on their application, they could not exclude him from tlie benefit of the bounty by subsequently filling their quota with other men, at least not till after a culpable neglect by the plaintiff in giving notice. The fact, therefore, that the selectmen filled their quota on the 12th of January, by causing the last eight men to be mustered in, is no answer to the plaintiff’s claim. TV"e find no error in the decision of the county court. In putting the case upon this ground, we do not intend to decide that the plaintiff would not be entitled to recover independent of the agency of the selectmen in procuring the plaintiff’s enlistment, nor is it necessary to decide that question.

The judgment of the county court is affirmed.