Town of Fairfax v. Soule , 10 Vt. 154 ( 1838 )

The opinion of the Court was delivéred by

Collameber, J.

Several objections are now urged to the admission of the bond, on the trial in the county court; — First, that it runs to certain persons, as selectmen, and not to the town. By the statute of 1817, “In all cases, where an ac- “ tion is given by laW to the town, trustees of schools, se- “ lectmen, or overseers of the poor of finy town in this state-, “the action shall, in all such cases, be brought in the “ name of the town, to which such selectmen or overseers be- “ long.” But it is now insisted that, as at common la.w the town could sustain no action ón this specialty, but it must be by the parties thereto, and not by those beneficially interested, it must still be so, for that the statute only relates to actions given by law, and not to those arising on special contracts. The evil which existed, and which Was intended to be remedied by that statute, was this there were many fictions which were given by statutes to those officers. The officers were subject to annual elections, and frequently, before the action could be determined, the officers Were changed, and this occasioned difficulty With tte pleadings and judgments. This difficulty, however, was not confined to actions given by statute. It as often arose in relation to actions on special contracts, such as contracts with the treasurer, or with the selectmen and trustees, in the leasing of the public lands, and reserving and collecting rents, which were equally reached by the statute. Indeed, the expression, “ in all cases where an action is given by law,” covers all possible cases, for no action can be maintained by contract. The law gives the action for the breach of the contract. The legal efFect, then, of all contracts made with the selectmen, for the benefit of the town, is, that they become contracts with the town. Contracts made by public agents, in that capacity, within their power, bind the public, and not themselves, and such is their legal effect. By parity of reasoning, a contract to óne in that capacity is, in legal effect, a contract to the public body. This bond, then, was declared bn according t‘o its legal effect.

But it is insisted that it should not have been admitted, because it does not appear by the bond, that the bridge, contracted to be built, was a town bridge. This constituted no 'objection to the admission of the bond.f^That fact might have been shown by other testimony, which we must now presume was presented, as the record does not profess to set but all the evidence; and the court always presume all was right, unless the contrary appears by the record.

It is [further objected, that even if the town can sustain an action on this bond, still, it must be described in the declaration as running to the selectmen, &c. Matter of des-1 cription must be certain and exact, matter of averments must be only correct in substance, and according' to the legal effect. In this case, the declaration has not attempted to set out the paper, or its tenor. It is an action of debt, on this bond, declared on according to its legal effect, as already explained, and would be a sufficient b'&r to any other action which could be brought upon it.

Judgment affirmed.