Chesterfield v. Perkins ( 1879 )

The jury have found that the defendants' contract was, in substance, to cause F. to be released from liability to military service for three years, so far as that object could be accomplished by a substitute acceptable to the military authorities. The question is not whether W. was in the service when accepted as a substitute, nor whether he was a deserter, nor whether the acceptance of him as a substitute ought to have been revoked. The risks on those points were assumed by the defendants. Neither the plaintiff nor F. was required by the contract of these parties to make any effort to induce the government to be content with the substitute convicted of desertion by a court-martial. The judgment of that court was evidence in this case. Lebanon v. Heath, 47 N.H. 353; Severance v. Healey, 50 N.H. 448. The conviction of W. tended to show that the government was not satisfied with him as a substitute for F., and revoked its acceptance of him, and that the revocation was not caused by any fault of F. or the plaintiff, or by any mistake which would have been corrected by the exercise of reasonable diligence on the part of F. or the plaintiff. If it was not necessary for the plaintiff to show the conviction of W. as the reason why he failed to answer the practical purpose of a substitute for F., the defendants were not harmed by the admission of the evidence of the reason.

Judgment for the plaintiff.

FOSTER, STANLEY, and CLARK, JJ., did not sit: the others concurred.