Wood v. Town of Springfield , 43 Vt. 617 ( 1871 )

The opinion of the court was delivered by

Wheeler, J.

The declaration in this case contains three 'special counts and the common, counts in assumpsit. The first special count sets forth a contract on the 25th day of November, 1868, to pay three hundred dollars to each person who'should enlist and be mustered into the military service of the United States to the credit of the defendant under, the call of October 17, 1868, before the first day of January, 1864, and that the plaintiff did so enlist and be mustered on the 21st day of December, 1863 ; the second special count sets forth a contract on the 22d day of December, 1863, to pay two hundred dollars in addition to the three hundred ; the-third special count, a contract on the 15th day of February, 1864, to pay a bounty of five hundred dollar's. To the whole declaration the defendant town pleaded the general issue, and that the causes of action did not accrue within six years before the commencement of the suit, and gave notice that upon the trial it would give in evidence and rely upon in defense that it had voted a bounty of two hundred and one dollars payable in installments to such veteran soldiers as had received no bounty, and that the plaintiff had received and receipted for such installments under that vote. The plaintiff joined issue upon ihe general issue, and to the plea that the causes of action did not accrue withiu six years replied that he had been an inhabitant of this state, absent from it in the military service of the United States, and that-he had the cause of action in the first count mentioned at the time when he enlisted into that service, and that the cause of action in that count mentioned did accrue within six years exclusive of the time while he was so absent, but made no further answer to that plea, as it applied to the causes of action set forth in the other counts. The plaintiff insists that this replication is an answer to the whole plea, and that if he could maintain his replication as to the cause of action set forth in the first count, it would obviate the effect of the plea upon the causes of action set forth in the rest of the counts, and cites Perkins v. Burbank, 2 Mass., 81, in support of this position. That case does go to the extent o-f the plaintiff’s claim in this respect; hut in Carpenter v. McClure, 38 Vt., 875, it was held that a replication to a single plea to a declaration containing several counts, which applied to only one count, would be no answer to the plea as to the other counts. The reasons for the decision then made were fully set forth, and the authority and weight of the decision in Perkins v. Burbank fully considered, in the opinion of the court in Carpenter v. McClure, by Judge Peck. There is no occasion to do more in respect to this decision upon the effect of this replication, than to refer to the decision in Carpenter v. McClure. If the plaintiff had had any special answer to the plea as to the other counts, he could have set it forth in another replication to the plea as applied to each or all of them, and such pleading would not be bad for duplicity, while he had no more than one replication to the plea as it applied to each count. This replication only went to the plea as a special answer to the first count, and none having been made to the plea as an answer to the others, it stood without answer except such as can be inferred was understood as having been made to it in the county court. No question was made there about the want of an answer to that part of the plea, or about the admissibility of evidence to prove or disprove it, and evidence having been received without objection that is claimed on one side to prove and on the other to disprove it, it must have been treated as traversed and the truth of the allegations in it as being in issue. The defendant traversed the replication and issue was joined thereon. The trial was had by the co(urt below upon the issues joined upon the general issue, upon a traverse to the plea of the statute of limitations as it applied to all the counts but the first, upon the traverse to the replication and upon the notice.

As to the issue joined upon the general issue, the plaintiff by his proofs and the agreed statement of facts showed that the defendant, on the 25th day of November, 1863, offered to pay a bounty of three hundred dollars to such volunteers as should enlist and be mustered in under- the then last call of the President if they should enlist before the first day of January then next, and that on the, 21st day of December, 1863, he complied with the terms of the offer. This made out that the defendant did assume and promise "as in the first count was alleged. Gale v. Jamaica, 39 Vt., 610. The plaintiff also showed that he had enlisted to fill the quota of the defendant under the then last call for soldiers, and that on the 22d day of December, 1863, the defendant town voted to those who had, or should so enlist, an addition of two hundred dollars to the bounty of three hundred dollars before voted. This made out that the defendant did assume and promise as in the second count was alleged. Cox v. Mt. Tabor, 41 Vt., 28. The plaintiff claims no right to recover either upon the third count or upon the general counts, therefore no consideration is given to either. The plea of the statute of limitations being-treated as having- been traversed as to the first count, the finding-of the county court is to be applied to that issue. That issue is whether the defendant promised to pay the two hundred dollars mentioned in that count, or not, within six years next'before the commencement of this suit. A new promise to pay that claim, or an acknowledgement of it made within six years, would support the affirmative of that issue. 1 Ch. Pl., 582. The plaintiff, as has been seen, had a valid claim to the sum of three hundred dollars upon his muster into service on the 21st day of December, 1863, and to two hundred dollars upon its being voted on the 22d day of December 1863. On the 25th day of March, 1865, these claims had not been paid, and the plaintiff was then a veteran soldier, who had re-enlisted into the service to the credit of the defendant after two years service therein, and had received no previous bounty. On that day the defendant town voted that it would “pay the claims of those veteran soldiers who re-enlisted into the United States service to the credit of the town after two years service therein, without having received any previous bounty from the town, the sum of two hundred and one dollars each, to be paid in four annual installments of fifty dollars and twenty-five cents each, on the first day of April, in the years 1866, 1867, 1868, and 1869.” Perhaps some of the soldiers who were included in this vote had no valid claim to any bounty previous to its passage; if so, the vote created a new liability of the defendant to them. But inasmuch as the plaintiff had a valid claim previous to the vote, and the vote was in terms to pay the claims of a class of which the plaintiff was one, and was not expressed to be in lieu of, or in satisfaction of, any other claims, as to the- plaintiff the vote is considered to have been a vote to pay two hundred and one dollars upon the claims which he then already had. This vote was within six years next before the commencement of this suit, and was an acknowledgment of the claim of the plaintiff. The finding in respect to this vote determined the issue upon the plea of the statute of limitations as applied to the second count in favor of the plaintiff. The plaintiff did not choose to rest his right of recovery under his first count upon a traverse of the plea of the statute of limitations, but replied specially, and the replication was traversed, and issue joined thereon. If the plaintiff had traversed that plea as to the first count instead of replying new matter, the same finding that determined the issue upon the traverse of it as to the second plea in favor of the plaintiff would have determined the issue upon the traverse of it as to the first plea in the same way. But as the issue was joined upon the traverse to the replication, the finding is to be applied to the determination of that issue. The material facts put in issue by the traverse of the replication are that the plaintiff had the cause of action mentioned in the first count when he enlisted into the service, and that this cause of action accrued within six years exclusive of the time of his absence in the service. The facts found and conceded show that this cause of action accrued to him upon his enlistment and muster. The act of volunteering or enlisting, contemplated by the provisions of § 20, chap. 68, Gen. Stats., includes the whole transaction by which a person not before in the military service of the United States would get into it; and would embrace the muster of the recruit as well as the signing of the contract of enlistment by him. The act of volunteering or enlisting in this sense by the plaintiff gave him this cause of action; it accrued at the same moment at which he enlisted, he got the cause of action at that time and had it then, therefore he had it at the time of volunteering or enlisting within the meaning of this statute. This was December 21st, 1863. He was absent from the state in the service from that time until the 11th day of July, 1865. This action was commenced the 15th day of March, 1870. Therefore the action did accrue within sis years, exclusive of the time of his absence in the service. This determines the issue joined upon the traverse to the replication in favor of the plaintiff. No objection was made or question raised in the county court about the proof of the. facts set forth' in the notice of special matter; these facts are therefore properly in the case, and the defendant has a right to rely upon the legal effect of them in connection with the other facts established upon the other issues. Paige v. Smith, 13 Vt., 271. These facts amount to a payment by the defendant of the several sums of money set forth in the notice and established by the finding at the several times when the payments were made. The defendant insists in argument that the acceptance of these payments by the plaintiff amounted to a waiver of all previous claims, or to a satisfaction of them. The statute- requires notice to be given of the defense of accord and satisfaction. The notice in this 'case sets up the defense of payment to the extent of the sums alleged to have been paid, but does not allege any accord or payment in satisfaction of any claim. Neither is it found by the county court that the defendant voted or that the plaintiff received the sums paid in waiver of or satisfaction of any claim. This -argument in favor of the defendant must fail for want both of allegation and of any finding to support it. ' Without an express finding to that effect, the receipt of a part of a lawful claim cannot operate as a satisfaction of the whole. Preston v. Grant, 34 Vt., 401. The result is that the plaintiff is entitled to recover on the first count three hundred dollars with interest; on the second count two hundred dollars with interest; and the defendant is entitled upon his notice of payment to have deducted, as having been paid, the sums paid under the vote of two hundred one dollars at the several times when these sums were paid. We understand that this is the saíne as the judgment in the county court.

Judgment affirmed.