Town of Lyman v. Lull

4 N.H. 495

• Court: Superior Court of New Hampshire
• Decided: November 15, 1828
• Status: Published

Opinion

Richardson, C. J.

It is said on behalf of the defendants, in this case, that the evidence was not in law sufficient to sustain the issues on the part of the plaintiff. We shall, in the first place, consider the question, whether previously to the commencement of this suit the town had sustained any damage whatever against which the defendants were bound to indemnify ? '

It is well settled, that a mere liability to pay is not a breach of the condition of a bond to save harmless. Rut a liability attended with any inconvenience to the obligee, is a damage, which is within the meaning of the condition. Yelv. 207, Rosse v. Pye; 5 Coke, 24, Broughton's Case; 10 Mass. Rep. 46, Fish v. Dana; Com. Dig. Condition I; 1 Rolle’s Ab. 432; Cro. Eliz. 672, Morris v. Lutterell; 1 Ventris, 261; Cro. James, 339, Freeman v. Sheen.

In this case, the overseers of the poor had taken charge of the child as a pauper, had,procured a place for it, had made a contract for its support, and had thus procured it to be supported and maintained on the credit of the town, for several weeks before the suit was commenced. What was thus done by the officers of the town, may well be considered as done by the town, and was something more than a mere liability to support. It was, in fact, an actual maintenance of the child ; and a damage against which the defendants are bound to indemnify the town.

But it is necessary that the breach of the condition should be proved substantially as alleged. 1 Chitty’s Pl. 556. We shall, therefore, in the next place enquire, whether there is a variance between the allegations in the case, and the proof.

In the case of Lee v. Deerfield, 3 N. H. Rep. 290, we had under consideration the clause in the statute of June 27, 1809, which declares, that a town which has supported a pauper not belonging to such town, may recover of the town or person chargeable “all such sums as they shall have expended,” and we held in that case, that “the sums expended” meant the value of the supplies furnished. Nothing has since occurred to our minds, which has led us to doubt the correctness of that decision, and we are of opinion that the same rule of construction may be safely applied in this case ; and that the allegation that -twenty dollars had been expended in the support of the child, may well enough be construed to mean that supplies to that amount had been furnished-We think it clear, that if it bad been shown that the child had been supported at a poor house belonging to the town, the evidence would have been sufficient to support the allegation in .this case ; and we think that between that case and this there is no solid ground on which to found a distinction.

We are, therefore, of opinion, that no good cause is shown, why the verdict in this case should be set aside.

But it is moved on behalf of the defendants, that judgment be rendered for them notwithstanding the verdict.

If the defendants had pleaded, that before any expense was incurred by the town, the overseers of the poor took the child and refused to let the defendants have the child to support, it might, perhaps, have been a good plea. But a plea alleging that the defendants had made suitable provisions for the support of the child of which the town had notice, without an averment that the child was in the custody of the officers of the town, and that they refused to let the defendants support the child, is clearly no answer to this action. The cases of Strangeways v. Robinson, 4 Taunt. 498, and of Richards v. Hodges, 1 Mod. Rep. 43, are directly in point.

It was not enough, that the defendants had made suitable provision for the support of the child at a particular place ; it was their business to see that the-child had the benefit of the provision, unless prevented by the officers of the town.

Judgment for the pla intiffs.