Inhabitants of Verona v. Inhabitants of Penobscot , 56 Me. 11 ( 1868 )

Kent, J.

— The only notice by the plaintiffs to the defendants, was dated Feb. 22, 1865, and given on or about that day. Before that day certain supplies had been furnished to the family of a soldier who was killed in battle, May 17, 1864. As the law then stood, under the decisions of this Court, these could not be regarded as pauper supplies, and the town furnishing them could make no legal claim for them on the town in which the family had a legal settlement. Milford v. Orono, 50 Maine, 529; Veazie v. China, ibid, 518.

It was then the case of a notice of supplies furnished to a family, when no such supplies as would give a right of action had then been furnished, because furnished to a soldier’s family within one year after his death in the service. The plaintiff town continued to furnish the family with needed supplies from time to time to the end of the year 1865, continuously.

According to the decision in the case of Veazie v. Howland, 53 Maine, 38, the notice was sufficient to cover supplies furnished three months before the notice and for two years after the cause of action accrued, although they might have been supplied, not continuously, but occasionally.

But a question here arises, — whether to make a notice thus operative and extensive, it must not be of supplies to an actual pauper, — and such as the town giving the notice can legally recover in a suit of the town notified ?

It has been repeatedly decided that there are exceptions to this general rule, one of which is that, after a suit brought, a new notice must be given for subsequent supplies,—so where payment has been made of the amount, claimed as due, to a certain date. It is said, in the case above cited, (53 Maine,) that, " we must not be understood as determining that one notice will be sufficient in all cases.”

This notice was given in February, 1865. At that time two of the items in the account now sued had been furnished. A new law on this subject went into operation on the second of April following, wbicb gave a right of action for such supplies to the families of soldiers against the town in which was their legal settlement. But can the notice given, when the former law was in operation, and when no legal claim existed, and no pauper supplies had been furnished, be sufficient to cover the supplies furnished under the new law? Suppose that the overseers of a town, anticipating that they must soon relieve a family — send a notice to the town where their settlement is—that they have fallen into distress and have been supplied; although in fact no supplies were actually furnished until after such notice, but are so furnished soon after, and continuously for a year, would the notice be sufficient to charge the defendant town for all such supplies ?

We think that a notice, to charge a town for subsequent supplies, must be of supplies actually furnished as pauper supplies, and for which the town giving the notice can recover. In other words, that if there is no legal liability to pay for the supplies furnished up to the time of notice and referred to in it, because no pauperism existed, no recovery can be had under that notice for subsequent supplies, although furnished under such circumstances, or under such a new law as made them pauper supplies for which the town, if notified, would be liable.

■ The notice itself is clearly defective and insufficient for any purpose. It was not answered, — but two of the selectmen of Penobscot went in consequence of the notice to Yerona, and had a conversation with one of the overseers of that town in regard to that family, and made an arrangement with him that if any new supplies were needed, exceeding ten dollars, the overseers of Penobscot should be notified. We do not think that this action and agreement by the overseers waived all defects in the notice so that it could operate on future supplies. Plaintiffs nonsuit.

Appleton, C. J., Walton, Barrows and Daneorth, JJ., concurred.