Eben Barton & Co. v. Town of Pittsford , 44 Vt. 371 ( 1872 )

The opinion of the court was delivered by

Ross J.

The only question .is, whether, under the facts found by the court, the plaintiffs are entitled to recover the balance of their account from February 20,1868, to March 20,1869, charged the defendant for liquors furnished EL F. Tiffany, the agent of the town for selling intoxicating liquors. The liquors were all ordered by said Tiffany. He represented that ho had authority to make the purchases in the name of the town. The case finds that, in fact, he had no such authority. Since the passage of the act of 1863, imposing the duty of purchasing the liquors for the agency upon the selectmen of the town, the agent to sell such liquors, as such agent, has no authority to make such purchases in the name, aud on the credit of the town, and can only act, if authorized by them, as the agent of the selectmen in making such purchases. Topsham v. Rogers, 42 Vt., 169. Tiffany had made the purchases under an express or implied authority for the selectmen for several years prior to the year 1868. The selectmen for that year informed him that they would discharge that duty themselves, and purchased two bills of liquors, telling him to notify them when he needed more. This he failed to do, but supplied himself, and partly by purchases from the plaintiffs. The fact, that the selectmen for previous years had allowed him to make such purchases, and that he had during those years made purchases of the plaintiffs, gave the plaintiffs no right to treat him as authorized by the selectmen for the year 1868. The plaintiffs wore bound to know the law, and that, by the law of the State, the selectmen alone were authorized to make the purchases, and also that the selectmen could make such purchases only during their term of office, one year, and could confer authority upon the agent for that time only. Tiffany could not act as the agent of the town directly, and only a-s the agent of each successive board of selectmen, if they chose to authorize him to .act for them in making the purchases. Erwin et al. v. Richmond, 42 Vt., 557. Tiffany seems to have attempted to make the purchases in the name of the town, as its agent. This he could not have done, certainly without a special authorization from the town. We think the plaintiffs, -when they dealt with him, relying upon his word alone for his authority, dealt with him at their peril; and that the purchases, when made by him, wore wholly unauthorized by the town or selectmen.

■ Did the town ever ratify these unauthorized purchases ? We think not. The settlement with the selectmen and town in March, 1869, showed that Tiffany had sold more liquors than had been furnished him by the selectmen, but fail to show that the town or selectmen had any knowledge that he had made any ¡purchases on the credit of the town. The settlement treated the purchases and sales as though they had been made for cash. The plaintiffs claim, that inasmuch as the selectmen furnished him no money with which to make purchases, they must have known they were made on the credit of the town. This does not necessarily follow. The settlement of February, 1868, shows that Tiffany had, belonging to the town in his hands in liquors and cash, $234.97. The most in value of liquors on hand at any settlement is $150. That sum might be, and probably was, sufficient to furnish a proper supply of liquors, as such sales are usually for cash. Hence, no inference that he purchased on the credit of the town is to be drawn from the fact that Ms sales exceeded the value of the liquors furnished by the selectmen. As the settlement of 1869 did not reveal the fact that the purchases had been made on the credit of the town, the town or selectmen had no occasion to revoke an agency which had never existed or been exercised to their knowledge. Hence the purchase made after that settlement is equally unauthorized with the others. The town did not receive the profits arising from these unauthorized purchases. As soon as it was made aware that the purchases had been made on its credit, it surrendered the note of $400, which it had received of Tiffany on settlement, and relinquished not only the profits arising from the sale's made that year, but the 234.97 in Tiffany’s hands at the commencement of the year. The plaintiffs have failed to show that Tiffany was authorized to make the purchases for the town, or that the town have ratified the purchases made by him without authority, and, therefore, fail to show a right to recover.

Judgment of the county court is affirmed.