Rogers v. Inhabitants of Newbury , 105 Mass. 533 ( 1870 )

Ames, J.

1. The plaintiff, having failed to prove any express contract with the proper officers of the defendant town, is not entitled to a verdict unless she can bring her case within the provisions of the Gen. Sts. c. 70, § 16. It is admitted that the jury were correctly instructed as to the facts which it was incumbent upon her to prove, in order to avail herself of the terms of that section; and the verdict shows that, so far as proof of the facts is concerned, she fulfilled all the conditions upon which her right of action depends. But the sufficiency of her declaration is by no means equally clear. It is enough, in a declaration, to state the substantive facts necessary to constitute the cause of action, with substantial certainty, without unnecessary verbiage. Gen. Sts. c. 129, § 2, el. 3. The declaration in this case wholly fails to aver that the expense or service for which she claims compensation was necessarily incurred; or that the persons named in her account were paupers ; or that she herself was not liable by law for the support of those persons ; or that she had given notice to or made request of the overseers ; or that the town had made no provision for these persons as paupers. It appears to us, that, even after making the largest allowance for the liberality of our practice act in matters of technical pleading, this declaration does not set forth the substantive facts necessary to constitute the cause of action under c. 70, § 16. It was appropriate to a case depending upon an express promise, and for that reason could not have been demurred to by the defendants. But without proof of such express promise, she cannot recover, until she shall, by leave of the court, make such amendments in her declaration as the case requires. Sistermans v. Field, 9 Gray, 331.

2. The remaining exception we do not think can be sustained. A notice to one member of the board, intended for them all collectively, and also intended for him to communicate to his colleagues, is sufficient. Exceptions sustained.