Cook v. Town of Winhall , 43 Vt. 434 ( 1871 )

The opinion of the court was delivered by

Pierpoint, C. J.

It appears from the report of the referee, that under the call of the president of the United States, for 300,-000 men, issued on the 19th of December, 1864, the quota of men to be furnished by the defendant town, as assessed by the provost marshal for the district, was nine. This, it is conceded, was the true number for the town to furnish, of the whole number then required of the state of Vermont.

On application to the general government, by the authorities of the state, the number of men required of the state was reduced. The effect was to reduce the quota of the defendant town to six men; but before the reduction, the town by vote authorized their selectmen to raise the number of men sufficient to fill their quota and to pay such men such sum as they in their discretion should see fit. At the time this vote was passed, the town and the selectmen understood that the town was required to furnish nine men ; hence the vote contemplated and authorized the selectmen to procure that number. The selectmen at once made a contract with Cramton, Lyon & Quinn, to furnish that number for the town. This contract, being made with full authority on the part of the selectmen, was binding upon the town. Cramton and his associates made arrangements with parties in Boston to obtain the required number of men for the town. After this the quota was reduced as aforesaid, and the selectmen, after a part of the men had been procured, notified Oramton and his associates of the reduction of the quota, and “ that they did not want more men on-listed than enough to fill their quota,” Cramton at the same time informing the selectmen of the engagements which he and his associates had entered into in respect to procuring the men. Nothing more was said on the subject, and Cramton and his associates proceeded to obtain the number of men according to the contract, and they were mustered in to the credit of the town.

The contract being a valid and binding contract at the time it was made, the selectmen could not change it without the consent of the other party, and if they refused to carry it out according to its terms, the town would be liable for all damages that might ensue to the other party.

At the time of the interview between Cramton and the selectmen, they did not repudiate the contract, or refuse to carry it out, or prohibit his procuring more than six men ; they simply gave notice that they did not want but six, seemingly leaving it optional with Cramton and his associates to furnish six men or nine. The selectmen apparently acted upon that idea after the contract had been performed by the other party. They ascertained and adjusted the balance due, and drew orders on the treasurer of the town for the amount. In doing this, they acted not only within the scope of their general authority as selectmen, but within the special authority conferred by the vote. They did not create a liability against the town by drawing these orders. They were only providing for the payment of an existing debt, and that in the ordinary mode by which debts against towns are paid.

When these orders were drawn and delivered to the payee, they constituted a debt against the town, to which upon the facts reported by the referee the town had no legal defense. The order being negotiable in this state, as is conceded, the action is properly brought in the name of the present plaintiff as the owner and holder.

This view of the case renders it unnecessary to inquire as to the effect of the orders being past due at the time they were transferred.

Judgment affirmed.