Earle v. Town of Wallingford , 44 Vt. 367 ( 1872 )

The opinion of the court was delivered by

Pecic, J.

The authority of the selectmen to make the contract with plaintiff, which the county court found proved, is not questioned on the part of the defense. The only objection urged to the validity of the contract is, that neither Rogers nor Gates, (two of the three selectmen,) understood that the defendant was to pay the plaintiff any more than three hundred dollars. But it appears that Sherman and Rogers, (two of the selectmen,) went together to the plaintiff to procure him to enlist to the credit of the defendant town on its quota ; that Shermau was permitted by Rogers .to negotiate with the plaintiff in behalf of the defendant for the board of selectmen, and in that capacity Sherman did agree with the plaintiff, that in consideration that the plaintiff would enlist for the defendant on its quota, the defendant would pay the plaintiff three hundred dollars, and as much more as the defendant should pay any other man who should enlist and apply on the same quota. Rogers, having gone with Sherman to hire the plaintiff to enlist to the credit of the defendant, must be taken to have approved the hiring of the plaintiff for the purpose specified, leaving only the price to be agreed upon by Sherman, • to whom he entrusted that duty. The town, through their selectmen, having availed itself of the credit of the plaintiff in pursuance of the contract, cannot, after the performance of the agreement by the plaintiff on his part, be permitted to repudiate any of its stipulations, by showing that Rogers and Gates did not understand that the price was to be more than three hundred dollars. Under the circumstances, the plaintiff must have had good reason to believe that Rogers, who came with Sherman on the business in question, was cognizant of, and’ consenting to, the agreement. The town can neither avoid the contract, nor limit it to the knowledge of Rogers and Gates of its details as to price. If Rogers acted in ignorance as to the amount of the price stipulated, i't is not the fault of the plaintiff, and cannot be to his prejudice. Whether it was the fault of Sherman in not communicating the full details of the contract to his fellow-selectmen, or their fault in not inquiring, is immaterial to the rights of the plaintiff. To every legal and practical purpose, a majority of the selectmen must be taken to have assented to and sanctioned the contract according to its stipulations as negotiated by Sherman. Any other conclusion would bo subtlety without sense, and refinement beyond reason, and contrary to justice. The case is stronger for the plaintiff than Tarbell v. Plymouth, 39 Vt., 429, as there was, in this case, no attempt on the part of the other selectmen to limit Sherman in the price he should agree to pay.

■ It is suggested by defendant’s counsel that the proof was not sufficient to avoid the effect of the plaintiff’s receipt. No principle is better settled than that a receipt is open to be explained and contradicted by parol evidence. It must be presumed that the evidence, upon which the court found the contract, was legal and sufficient in character and amount for that purpose, in the absence of anything showing the contrary. Again, as the town claim to limit the contract to three hundred dollars, the receipt rather aids the claim of the plaintiff than otherwise. The fact that the town paid the plaintiff three hundred and fifty dollars, the same it paid some others who went on that quota, tends to show, that if not absolutely, at least upon some contingency, the plaintiff by the contact was to receive more-than three hundred dollars. When the town paid the three hundred and fifty dollars, and took the plaintiff’s receipt, the plaintiff knew the town had paid others, who went on that quota, three hundred and fifty dollars each; but. he did not know the fact that it paid one man who went on that quota five hundred and fifty dollars. This explains the receipt, and shows it not at all inconsistent with the contract, as the plaintiff claims it, and as the county court found it proved. Had the town, when it paid the three hundred and fifty dollars, informed the plaintiff that it had paid to one man who went on that quota five hundred and fifty dollars, probably such a receipt would not have been given. No other objections to the decision of the county court are urged on the part of the defense. •

Judgment affirmed.