Chase v. Town of Middlesex , 43 Vt. 679 ( 1870 )

The opinion of the court was delivered by

Steele, J.

At a duly warned meeting to see about filling “ the quota of the town as assessed by the governor,” it was “ voted unanimously to instruct the selectmen to pay each enlisted man |200, when he shall be mustered into the service of the United States, up to the number of 18.” The plaintiff actually applied upon this quota of 18 men, and was one of the first eighteen to be mustered into the service from the town after the vote.

1. To his recovery of the promised bounty it is objected, first, that he enlisted without the procurement of the selectmen. The answer to this is—the selectmen were instructed to pay the $200, not merely to men secured by themselves, but “ to each enlisted man ” up to the number of 18, as fast as mustered.

2. It is also objected that the selectmen had contracted with others before the plaintiff was mustered. They had no authority to contract with others, except upon condition that such others should be so seasonably mustered as to be among the 18 covered by the terms of the vote of the town. Again, so far as the town was concerned, no contract could be perfected until there was a muster, and they were not mustered until after the plaintiff.

3. It is next objected that the town, at their meeting of December 24, 1863, instructed the selectmen to pay no bounties to men enlisted before November 23,1863, and plaintiff was enlisted before that day. But it is very clear that this vote cannot operate to rescind the vote of November 23, because there was no article referring to it in the warning. Nor can it operate to interpret the previous vote, the terms of that vote being clear and unmistakable without such aid. After this last vote and before the plaintiff was mustered, the selectmen notified him that they should pay him no bounty. But this notice was ineffectual to prejudice the plaintiff’s right, for two reasons : first, because the selectmen had no authority to say that any man who should bring himself within the terms of the offer of the town should be denied the benefit of that offer ; and secondly, because the selectmen, while they notified the plaintiff that they should not pay him, insisted on keeping his credit, and refused to allow the soldier to be transferred to any other town, although requested and notified that otherwise a bounty would be claimed by him. This, as was decided in Kittredge v. Walden, amounted to an acceptance of the man. Again, the notice which the selectmen gave the plaintiff that they should not pay him was not unqualified, but was expressly stated to be upon the ground that the plaintiff, being a battery recruit, could not apply on their quota. This was a mistake, and the plaintiff did apply on their quota.

We see no tenable ground of objection to the plaintiff’s recovery of the bounty of $200.

II. The plaintiff cannot recover the additional bounty of $150 for the reason that the town, at the time of voting that bounty, expressly excluded the plaintiff from its benefit by limiting it to such soldiers as enlisted on and after November 23, 1863. That vote in terms declared that no bounties should be paid to men who enlisted prior to November 23. So far as the vote would in its terms affect bounties voted at previous meetings, it would be illegal, because there was no article in the warning in respect to rescinding previous votes ; but so far as it expressed the intention of the town as to the bounty voted at that meeting, it was legal, because the town was at liberty to put such conditions and limitations to their vote of a new bounty on that occasion as they should see fit.

III. The plaintiff’s claim to recover, as upon a quantum meruit, what his credit was worth at the market price, cannot be sustained. The plaintiff can only recover upon an express contract. Had the town neglected to vote a bounty he could recover nothing, no matter how valuable his services. This has been repeatedly held.

The town having voted a bounty, the plaintiff can recover according to the terms of that vote, and no more. We see no evidence of any vote to pay the class of men to which the plaintiff belonged any bounty beyond the $200.

Judgment affirmed.