Howe v. Town of Royalton ( 1859 )

Aldis, J.

This is a declaration in two counts. The first states that a transient person was suddenly taken sick and was in need of relief at the plaintiff’s house ; that the plaintiff noth fled the overseer of the poor of Royalton of the situation of the pauper, and that the town neglected to provide for him, whereby the town became liable to the plaintiff for the support furnished by him to the pauper. This count states the very facts which make the town chargeable under the 16th section of the act for the support and removal of paupers. It is therefore a declaration founded upon the statute. To sustain it by proof it is necessary to show that the town, being notified, neglected to provide for the poor person. Upon being notified the town became liable for the support of the pauper, and thereupon might neglect to pro-, vide, and so become liable under the statute to the plaintiff, or might promise the plaintiff to pay him for such support, in which case the town would be liable to the plaintiff, not by virtue of the statute, but upon their promise. If upon notice the town pro-vide the support by agreeing with the plaintiff to furnish it, and to pay him for it, they do not neglect to provide, but do provide the support through the plaintiff. These two grounds of liability are thus wholly different, the one standing upon an express contract between the parties, the other upon neglect and the implied promise growing out of it.

A declaration counting upon the neglect requires proof of the neglect, and cannot be supported by proof of an express promise made at the time of the application.

The court charged the jury that in this case the plaintiff might recover by showing either neglect or an express promise. The jury, therefore, may have found either alone; the case shows there was evidence tending to show both.

If they found an express promise but no neglect, the plaintiff could not recover upon the first count.

This leads to the inquiry whether the second count is also a count upon the statute liability, or upon the express promise. This must be determined by the structure and substance of the count itself; It does not contain, like the first count, an affirmative averment of the facts required by statute to make the town chargeable; but like a common count in indebitatus assumpsit it sets forth that the defendant was indebted to the plaintiff for money paid, etc., and being so indebted promised to pay. So far it is like the form of a common count. On the other hand it does not aver, as in the usual form, that the money was paid “ for the use of the defendants, and at their requestbut avers that it was paid for the use of one Blaisdell, a transient person, and then proceeds to state all the facts which are requisite under the statute to charge the town, including an averment that the town neglected to provide for such person, and then says, “being so indebted the defendants promised to pay.”

Now the averment of these facts, this full and in a common count unnecessary statement of all the circumstances required to create the statute liability, is inconsistent with both the form and substance of a common count. The averment of neglect is wholly inconsistent with a declaration in general assumpsit. We think it cannot, without violence to the established forms of pleading, be called a common count.

Is it a special count under which an express promise made at the time of the notice can be proved? Here again, the allegation of neglect is inconsistent with the proof of such express promise, for as we have already said, an express promise made at the time and upon the faith of which the support was furnished, excludes the idea of neglect.

It may unquestionably be treated as a count stating a liability under the statute arising from neglect, and that in consideration thereof the defendants afterwards promised to pay the plaintiff for services rendered and for which they were liable, and proof of these facts and a subsequent promise would sustain the declaration. The difficulty in this view of the case is that there was no evidence tending to show a subsequent promise. Hence, though we may well hold that the count is precisely such a count, yet there is a fatal variance between the proof and the declaration.

If the allegation of .neglect were stricken from the count, then it would probably be sufficient, at least after verdict, as declaring upon an express promise made at the time of the notice. But we think the allegation of neglect cannot be treated as surplus-age. It is the very fact which changes the liability from contract to statutory obligation. It changes the character of the proof and the nature of the issue. Upon such a declaration the defendants would have no reason to expect that proof of an express promise at the time of the notice would be offered. They would be prepared only to disprove the facts showing that they were chargeable by statute, or that they had made a subsequent promise.

We have therefore come to the conclusion, we may say we have reluctantly come to the conclusion, that there was error in the charge of the court in holding that proof of an express promise made at the time of the application would sustain the declaration.

Judgment reversed.