Holderness v. Baker , 44 N.H. 414 ( 1860 )

Bartlett, J.^*

This action is brought, not for damages arising from any official default or misconduct of the defendant, but simply to recover money of the plaintiff, which was received by the defendant while he was treasurer of the town, and which still remains in his hands. It is therefore unnecessary to inquire what may be the true construction of the 12th section, chapter 180, of the Devised Statutes. If the defendant, as servant of the town, received money as the town’s, even if he had no prior authority to do so, the town might ratify his act; Backman v. Charlestown, 42 N. H. 186 ; and has ratified it by bringing the present suit; Story on Agency, sec. 259; for towns are “subject to the same implications from their corporate acts, or the acts of their agents within the scope of their authority, without either vote, deed, or writing, as in the case of natural persons.” Glidden v. Unity, 83 N. H. 577. After such a ratification, as between the defendant and the town, the money so received would belong to the latter. Story on Agency, see. 217; 2 Stark. Ev. 95. In such case evidence that money so received was money borrowed by the defendant and others as selectmen of Holderness, on notes signed by them as notes of the town, “without any authority by vote of the town,” or was the proceeds of certain taxes raised under an illegal vote, would fail to show any right of the defendant to retain the money as against the plaintiff. Johnson v. Goodridge, 3 Shep. 29.

The letter of the defendant’s counsel was properly received as evidence of the amount of certain taxes for which it was claimed the defendant was chargeable. Although written after the audit- or’s hearing, it was before his decision and in answer to a letter of inquiry from the auditor to the counsel on both sides, it stated the amount of taxes for which the defendant was chargeable, “if his objections, taken on the first hearing, did not prevail.” In substance, it does not stand otherwise than it would if the counsel at the hearing had admitted that the defendant was liable for that amount, if by law he was liable at. all in this action; for the admissions were made before the decision by the auditor, and for his use in making the decision. 1 Greenl. Ev., sec. 186; Lewis v. Sumner, 13 Met. 273; Witherell v. Bird, 7 C. & P. 6.

The plaintiff was properly allowed to show the determination of the amount of outstanding taxes made by Hughes and York, under the agreement between the auditors of the town and the defendant. Smith v. B., C. & M. Railroad, 36 N. H. 492.

Cox, as selectman, could not act for the town in making a loan of its money to himself; Story on Agency, see. 210, 211; and the questions whether the transaction was a loan, and whether the defendant had in fact the authority he claimed, were, upon the conflicting evidence, properly submitted to the jury, since, where .the evidence was conflicting, the court could not, as a matter of law, pronounce the transaction not a loan, nor could they say that the defendant had the authority he claimed. Burbank v. Piermont, 44 N. H. 43; French-v. Benton, 44 N. H. 28. No exception was taken to the instructions of the court in submitting these questions to the jury. If the original transactions were authorized, they were valid, and the question of ratification was immaterial; and the instructions of the court that if Baker and Gox had no authority to bind the town originally, they had no authority to bind it by a ratification, were correct, for there was no evidence of any subsequent additional authority. ¥e think that neither a town treasurer nor one of a board of selectmen, merely as such, and without authority in fact from the town, or derived from a majority of the board of selectmen, can bind the town by a loan of its money; Burbank v. Piermont; or consequently by ratification of such a loan. The defendant, as treasurer of the town, took the notes from Cox, and suffered them to remain in the possession of the town, that is, of its officers, after his term of service expired. Under the circumstances, we do not think that the mere facts that these notes remained “in the possession and under the control of the town from tbe time the'defendant ceased to be selectman and treasurer of the town” until the time of trial, and that “Baker exercised no control over them,” show a ratification of his transactions by the town, or estop it from denying such a ratification; for these facts under the circumstances show nothing upon the part of the town inconsistent with a refusal to ratify the original transaction; Lee v. Lamprey, 43 N. H. 11; Hazelton v. Batchelder, 44 N. H. 40; Norris v. Morrill, 43 N. H. 218; nor can any additional force be given to these facts by any unauthorized acts of officers of the town. There must, therefore, be

Judgment on the verdict.

* Bellows, J., Baying Been of counsel, did not sit.