Hadsell v. Inhabitants of Hancock , 69 Mass. 526 ( 1855 )

Thomas, J.

No question is made as to the power of towns

to indemnify their officers and agents against liabilities incurred in the bona fide discharge of their duties. But the first objection to the maintenance of the action is that the vote of the town, authorizing the acts done by the plaintiffs, and indemnifying them against any liability thereby incurred, was illegal, because there was no sufficient article for the purpose in the warrant calling the town meeting. We cannot but think otherwise. The article in the warrant is quite full and explicit, and the votes passed within its fair scope. It is, in effect, to see if the town will build a town house, or provide a house for town purposes, and raise money therefor. The choice of a committee or agents to do the work or cause it to be done was a usual and necessary incident to the main purpose expressed; as a town must act ordinarily through agents or committees. The vote to indemnify those agents was only doing what, in carrying out the subject matter of the warrant, the town had a well settled and well known right to do.

2. The second objection is, that the plaintiffs cannot maintain a joint action. The vote was to indemnify the selectmen, or either of them. The action against the plaintiffs was a joint action, the judgment joint. The fact that payments were made by the plaintiffs separately is not material, both being equally liable.

3. Nor can the objection prevail, that it was necessary to include as plaintiff the third selectman. There is nothing to show that he was ever sued by any proprietor, or ever incurred any loss or damage. The vote was “to indemnify the selectmen, as the building committee of the town house, against any claim for damages which any proprietor of the meeting-house may legally substantiate against them or either of them or any agent acting properly under their authority.” Whether the other selectman acted or not, the proprietor might sue for the trespass of one or more, as he pleased ; as a trespasser could not plead in abatement that his co-trespassers were not joined. But it is only those against whom claims have been legally substantiated by a proprietor that can sue for indemnity.

4. The fourth objection is, that no actual notice was given to the town of the pendency of the action. We think the answer of the plaintiffs to this objection is decisive. The vote of indemnity itself obviates the necessity of notice. It contemplates the defence of suits, that should be brought, till they were legally substantiated.

Nor does such want of actual notice prevent the plaintiffs from recovering the costs and expenses incurred in defending the suit against them. It was in fact a suit to determine the rights of the town. The vote of the town contemplated and authorized the defence, and it is found by the jury that the defence was reasonable and proper, and the expenses reasonable and incurred in good faith. Exceptions overruled.