Brown v. Inhabitants On Winterport , 79 Me. 305 ( 1887 )

Emery, J.

This action, though in the name of nominal assignee, Brown, is in fact brought by the Mineral Hill Mining Company, to recover of the town of Winterport, money alleged to have been loaned to the town by that company. Two of the three selectmen of the town, Arey, (chairman) and Ritchie, assuming to act in behalf of the town, borrowed of the plaintiff company $550 as for the town, and gave what purported to be a town note therefor, signed by them as selectmen. This was May 31, 1881.

This transaction alone of course does not imply -a promise by the town to repay the money. To imply such a promise, the plaintiff must establish by evidence two other propositions of fact. 1. That the money so obtained was either paid into the town treasury or was applied in fact to the discharge of lawful liabilities of the town to that extent. 2d. That the town ratified the action of the selectmen in so borrowing and applying the money. Lincoln v. Stockton, 75 Maine, 141; Otis v. Stockton, 76 Maine, 506.

I. Ritchie, one of said selectmen, testified that all the money thus borrowed was at once used to pay off and take up outstanding town orders, previously given for and representing legal liabilities of the town for ordinary municipal purposes, such as schools, streets, the poor, &c. He does not now profess to remember the dates, numbers, amounts, or payees of each, or many of these orders nor for what purpose each was given. He does state quite fully as to some of them. He testifies however, that all the orders were produced at the time by Mr. Arey, the chairman, that he and Mr. Arey examined them, that he was satisfied at the time of their authenticity, and that they were regularly issued for the usual municipal purposes,— that they were recorded with dates, numbers and amounts, &c., upon the book used by the town officers to record paid town orders. The amount was $553. He says that after being thus recorded, they were cancelled on the spot by burning. The book was left with Arey, the chairman, and it is claimed it was afterward burned in the fire that consumed Arey’s store.

Ritchie further testifies, that a list or memorandum of all these orders was read to the town meeting held Dec. 6 1884, a meeting called to consider the question of re-paying this money and which voted to do so. Mr. Ritchie is not contradicted, and although the evidence is not wholly satisfactory, and is not so clear and full as we could wish, we think it fairly sustains the proposition, that the money was in fact applied to the discharge of the town’s legal indebtedness to that extent.

Mr. Arey was the holder of these orders, and the defendants urged, that the money could not lawfully be applied to the orders held by him, as he was, (as the defendants say) indebted to. the town at the time, in a much larger sum ; indebted not simply as a debtor, but as a town officer for money of the town wrongfully appropriated to his own use. Much evidence is in the case upon this question of Arey’s indebtedness to the town. We do not think it matters, whether and how he was indebted. The plaintiff, in the absence of fraud, (and no fraud upon his part is suggested,) would not be affected by the state of the accounts between Arey and the town. If Arey was indebted to the town even for the money wrongfully appropriated, the town was also indebted to him. Each indebtedness, was distinct, and of a different nature. Each was outstanding. Neither had been applied toward liquidating the other. He was the holder of certain audited claims against the town, and the plaintiff’s money extinguished them. The town thus had the benefit of the money.

II. Two of the selectmen for the year 1884, gave the plaintiff company a town order for $618.13, dated July 7, 1884, to take up the original note, that sum being the amount with interest. They afterward called a town meeting, to see if the town would vote to pay this order among others. At this meeting held Dec. 6, 1884, it was voted that the treasurer hire money to pay the various notes and orders named in the warrant, including the order to the plaintiff company. This official vote, if valid, would seem to be an effectual ratification of the act of the selectmen in borrowing the money and giving the town order.

The defendants contend that the article in the warrant was too indefinite and general to authorize such a vote. Instead of a separate article for each note or order to be submitted to the town, there was one article naming distinctly and separately all the notes and orders to be acted upon. This particular order was named in the article by date, amount and name of payee. We think the warrant gave a notice sufficiently specific.

The defendants further contend that the vote was illegal, for the reason that it was not passed within the walls of the room named in the warrant as " Union Hall basementbut was passed just outside, in the open air, in front of the building. It seems there was by reason of the crowd, considerable difficulty in ascertaining the will of the meeting, while within the room, and calls were made from the floor that the division be had outside the building. These suggestions seem to have met with general approval and no opposition. The people at once all passed out of doors, the moderator and clerk with them. The meeting then divided, and the count was made in the open air close to the building. There was no formal adjournment from the room to the open air, but what was done, seems to have been done ■spontaneously and by unanimous consent. There was no ■abridgement of freedom of speech, or of vote. No person was •misled. No person was prejudiced. The effort was to obtain .greater freedom, and more certain expression of the real will of the meeting. The act complained of now, was not complained of then. It was not the omission of any necessary step in the procedure, nor the interpolation of any illegal restrictive step, but simply the well doing outside the walls, what could not have been well done inside the walls. It is a maxim of parliamentary law that anything, as to the mode of action, may be done by unanimous consent.

It will be seen upon a careful examination of the cases cited by the defendants to this point, that they do not conflict with our reasoning. In those cases it appeared that some persons’ rights were abridged, or that the meeting itself was unauthorized. The following authorities cited by the plaintiff sustain the vote Dole v. Irwin, 78 Ill. 170; People v. Kniffin, 21 How. Pr. 42.

The defendants again claim, that if we find there was a valid ratification, it was effectually rescinded by a subsequent vote at a legal meeting, Aug. 15, 1885, passed before the treasurer had obeyed the former vote. The act ratified however was the borrowing the plaintiff’s money by the then selectmen. That act had been done. The vote of ratification at once applied to the act, and adopted it as the act of the town. The act was then as binding on the town, as if the vote were prior in time to the act. It was then the town’s act. The town had borrowed the plaintiff’s money. A ratification after the act is as potent as authority before the act. The act is equally binding upon the principal in either case, and in neither case can the principal, after the act, relieve himself by a simple declaration of his change of mind. The cases cited by the defendants do not hold to the contrary.

We think the evidence fairly establishes the propositions: that the money was borrowed for the town,— that it was used by the town in payment of proper municipal charges,— that the town has ratified the borrowing, and has ratified the giving the order declared upon. Judgment for plaintiff for $618.13, with interest from December 9, 1884, the date of demand.

Peters, C. J., Walton, Virgin and Haskell, JJ., concurred. Librey, J., concurred in the result.