McKelsey v. Town of Richmond , 42 Vt. 557 ( 1870 )

The opinion of the court was delivered by

Wilson, J.

The appointment, by the commissioner, of Dr. Root as agent for the sale of liquor, did not confer on him any power to charge the town, nor was he authorized by statute to charge the town in making purchases. By the act of 1863, it was the duty of the selectmen of .Richmond to furnish Dr. Root as agent, at the expense of the town, such liquors as he was authorized to sell, and to fix the price at which he should sell them. The case states, among other things, that about the first Monday in May in each of the years 1864,1865 and 1866, Dr. Root was, by the commissioner, appointed agent for selling liquors in the defendant town ; that soon after his appointment in each of those years, the selectmen of that town directed Dr. Root to purchase for the town such liquors as were needed through that year, but it was understood by and between Root and the selectmen that no one of those directions or authorizations should extend, and the auditor finds that no one of them did extend, beyond the official year for which he was on each occasion just appointed. It appears that Dr. Root, acting as clerk or servant of the selectmen, but not as their general agent, made several purchases of liquors, which purchases were ratified by the selectmen. The authority of Dr. Root to sell liquor expired on the first day of May in each of these years. Before the first day of May, 1867, the selectmen had determined not to have liquors any longer purchased by or through the agent, but to purchase the liquors for the town that year themselves. Previous to the appointment of Dr. Root in May, 1867, and on the 6th day of said month, Root, at the solicitation of C. J. Lane, the plaintiffs’ agent, gave the plaintiffs’ said agent a conditional order for the liquors charged in the plaintiffs’ account, which order, it was understood between Root and the plaintiffs’ agent, should not be filled unless Root received the appointment as agent to sell liquors for the defendant town. Dr. Root was, on the 7th or 8th of May, 1867, by the commissioner appointed liquor agent for that town, and thereupon, on the 9th day of that month, the plaintiffs’ ag$nt forwarded to the plaintiffs the order for the liquors. It appears that the selectmen had no expectation that Dr. Root would obtain, or consent to take, the appointment so tendered to him ; they had no knowledge until after the 8th of May of said appointment, nor that he had ordered the liquors in question, and when informed of the purchase by Root they refused to ratify it. It is clear from the findings of the auditor that Dr. Root, after the 1st day of May, 1867, was not the actual or ostensible servant or agent of the defendants or their selectmen, and he had no authority whatever to make the purchase in question. The plaintiffs, under the circumstances, had no right to infer from their previous dealings with Root, a continuance of his alleged agency the preceding official years. But the case does not rest wholly upon the facts above stated. On the 6th of May, 1867, before the giving of the order by Root for the liquors, Andrew J. Crane, an inhabitant of said Richmond, informed the plaintiffs’ agent, Lane, that the selectmen of the defendant town were going to purchase the liquors for the town that year themselves. This was sufficient to put the plaintiffs on inquiry as to Root’s authority to give such order, and we think the plaintiffs had no right to expect the town would be liable unless the act of Root in making the purchase was ratified by the selectmen, which they refused to do. The purchase of the bill of liquors in suit not having been ratified by the selectmen, there is no occasion to consider whether they had power to ratify a purchase made by Root so as to bind the town. We must assume that the plaintiffs and their agent were fully aware that the statute, which authorized Root to sell liquors, did not authorize him to purchase them. We are agreed that upon the facts of this case the plaintiffs are not entitled to recover; and in view of tlie presumption that the plaintiffs made the sale with knowledge of our laws upon the subject, and of the actual notice to them that Root could not bind the town for that or any other purchase, they have no reason to complain of the result.

The judgment of the county court is reversed, and judgment for the defendants to recover their costs.