Jewett v. Hodgdon , 3 Me. 103 ( 1824 )

MeixeN, G. J.

delivered the opinion of the Court as follows.

The error assigned consists in the instructions which the Judge of the Court of Common Pleas who tried the cause gave to the jury: in which he stated to them that if they should find certain facts to be true, they must consider the defendant as released from his obligation to contribute towards the payment of the expenses in question; unless he expressly constituted the plaintiffs his agents, with authority to make the alteration in the petition, or had afterwards expressly assented to such alteration. It is contended that these questions should have been left to the jury; so that they might, if they thought proper, infer an implied appointment of the plaintiffs as agents, with power to use their sound discretion and make the alteration in the petition, if found necessary or expedient; or an implied subsequent assent to such alteration. In this case there was no proof of an express appointment, or express assent — or that the defendant knew of. the alteration or amendment of the petition, until after the commencement of the present action. The jury, therefore, could not presume an implied assent to the amendment; because it could not possibly be given without knowledge of such amendment. We cannot, for this reason, perceive any incorrectness in the instructions of the Judge in this particular. But it is urged that the signing of the petition by the defendant and others, must be considered as con-conveying an authority to some of the petitioners to act as agents for the others, in taking those legal measures which they must have known to be necessary to procure an adjudication of the Court of Sessions upon the subject of the petition; — and that therefore, no express appointment of the plaintiffs as agents was necessary; and that at any rate, as they were appointed expressly by some of the petitioners, though the defendant was not present, he must be considered as assenting to the agency; and that such implied assent and agreement to this arrangement was a proper subject for the consideration of the jury,, and should have been submitted to them for decision, according to the case of Sproat v. Porter & al. Allowing this argument its full force, and that such implied promise mighthave been fairly found by the jury, still itdoes not follow, that the implied agreement extended any further than to the usual prosecution of the petition which the defendant had signed, and the legal mode of obtaining a decision of the Court of Sessions upon the prayer of that petition, as it was when signed by him. It was undoubtedly'a strong inducement to him to sign the petition, that the contemplated road was essentially to benefit him as an individual, in case it should be located according to the prayer of the petition, and in the course therein specially described; but by the amendment of the petition, all intermediate objects were struck out, and only the termini of the contemplated road were left. This change was very material, and has operated to the private disadvantage of the defendant, defeated his expectations, and in all respects disappointed him. Of all this he was ignorant until long after the road was located. — He now says to the plaintiffs “ I have never signed such a petition as the Court acted upon; — I have never petitioned for such a road as you have procured to be laid out; — and I never would have petitioned for such an one; — I am injured and not benejitted as I expected to be and should have been, had the road been laid out as I requested.” The amendment, we think must be considered as a new petition, so far as it regards the defendant and such new petition he never signed, and of course he is not answerable for any of the expenses incurred after the amendment; and as the act of the plaintiffs was not done by the consent or even knowledge of the defendant; as they did not pursue, but relinquished the object which the defendant had in view; and never attempted to obtain a decision of the Court upon the prayer of the petition as it was when signed; we think they have, by thus abandoning the original object, lost all claim on the defendants — and accordingly the judgment of the Court of Common Pleas is affirmed with costs.