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Stone v. Huggins.

thereupon the defendant told him if he would take the bill and receipt it, and go around one day with it, and see who would work and who pay money, that he, (Houghton) should be at no further trouble with the bill: Houghton did thereupon take and receipt said bill upon that understanding, and went round with it as requested, and notified the tax payers of the time to work upon said bill. Some few days afterwards, Houghton met the defendant and told him he must take the tax bill and work it out, or get some one ; that he, Houghton, should do nothing more about it; and thereupon the defendant inquired of him who would be a good hand to take and work out said tax bill ; the plaintiff was named as being a good hand for that purpose, and Houghton and defendant concurred that he would be; and the defendant requested Houghton to request one Bridge to tell the plaintiff that the defendant wanted him to come and take said tax bill and work it out. In some short time after this, the plaintiff called at said Houghton's in pursuance of the word sent to him by the defendant through said Houghton, and said Bridge, (which was given to the plaintiff by said Bridge,) and got said tax bill with the consent of Houghton; and after the plaintiff thus got said tax bill, he saw the defendant on the subject, who told him he wanted him to take charge of the work on the roads in that district; and thereupon the plaintiff notified the tax payers set in said bill; and on the 5th of June, began work in repairing the highways in said district, and so continued, with occasional intervals, till the 24th of August, 1848.

The plaintiff presented his account, in which the charges were for labor and materials performed and furnished by the plaintiff, in and about the work and repairs on the highways, in said district, and in collecting said taxes, by reason and as the result of what had occurred in relation thereto, as above set forth. There were two of said highways, one called “the brook road,” the other "the brick-yard road.” In the repairs made on said roads by and under the plaintiff, twenty-one dollars were paid in labor by the tax-payers named in said bill, and performed and laid out on said brook road. The residue of the expenditures therein was embraced in the plaintiff's charges in his account. The plaintiff collected in money, on said tax bill, seventy-two dollars and four cents. Of the plaintiff's charges for labor by himself and others, about ninety

, 1856

1856

Stone v. Huggins.

five dollars were for repairs upon the “ brick-yard road,” which were not commenced till those on the brook road had been completed. The first work done on the brick-yard road was on the 29th day of June, 1848. The tax-bill amounted to $269.83. At the time the plaintiff began work on the 5th of June, and up to the time he went to work on the brick-yard road, the last named road was badly out of repair, and difficult and dangerous to use. During the progress of the work on the brook road, the defendant told the plaintiff that the brick-yard road must be repaired. About the time the work on the brook road was finished, in conversation between the plaintiff and defendant, about the work on, and repairs of the highways in said district, the plaintiff informed the defendant that the money which he had been able to realize from said taxbill was nearly exhausted. The defendant told the plaintiff that the brick-yard road must be fixed at any rate. The plaintiff thereafter went on and fixed said road, for which he has charged in his account. The repairs made by and under the plaintiff, were needed and properly made, as well upon the brook as upon the brickyard road.

The plaintiff had no authority by law, to enforce the collection of the taxes in said bill; he collected all that he could without authority, and made all reasonable effort to collect more. For time spent in and about making such collection, he charged in his account. During the time the plaintiff had said bill in his possession, he applied to the defendant, as one of the selectmen to give him authority to enforce the collection of said taxes, or to put said bill into the hands of the constable to collect; and once in the summer of 1848, and after the work on the highways was finished, the plaintiff informed the defendant and Peter Houghton together, (said Houghton then being one of the selectmen of said town of Windsor,) that a portion of the taxes aforesaid were uncollected, and that he could not collect them without authority, and requested them to give him authority in that behalf, which they declined then to do, and never did do. The tax-bill remained in the plaintiff's hands till the spring of 1849, at the time the selectmen of 1849, (of whom the defendant was one,) were making out the highway taxes for that year, when the defendant went to the plaintiff's house, in plaintiffs absence and got said tax-bill to use in making

Stone v. Hugging.

up the new tax-bill, and thereupon the uncollected arrears of said tax-bill of 1848, were carried forward and embraced in the tax-bill of 1849, in pursuance of the usage in said town in that respect. This was done without objection or claim to the contrary on the part of the plaintiff. The plaintiff, in taking said tax bill and doing what he did in respect thereto, and making the repairs on said highways, supposed he was acting by the procurement of the selectmen of Windsor, and that the town would pay him for his services and expenditures, and had no thought or suspicion to the contray, till some time in May, 1849, after said tax-bill had been taken from him, when he made application to the selectmen in that behalf, and they declined to recognize or pay his claim, and denied the liability of the town therefor. The defendant made no other employment of the plaintiff than is above set forth, and gave no other direction to the plaintiff, as to what work, or what amount of work to do, or expenditures to make, than is above set forth, and the plaintiff had no other directions from any source except what was contained in the warrant appended to the tax-bill. It did not appear that the plaintiff was ever employed by the defendant, or by any person acting in his behalf, to perform any labor or make any expenditures on said highways, with the understanding on the part of either, at the time of such employment, or while said work and expenditures by the plaintiff were going on, that the same were upon the credit of the defendant, nor that the defendant ever recognized the same as having been performed or made on his credit. None of the selectmen of Windsor, for the year 1848, except the defendant participated in the employment of the plaintiff, and what was done in that behalf, was the sole act of the defendant, though it did not appear that this was known to the plaintiff till sometime in May, 1849, when his claim and the liability of the town was denied. · It did not appear that the plaintiff had authority from the defendant, or any one else, except as above set forth, to exceed or anticipate the available amount of the tax-bill, in his services and expenditures, nor that he was aware, except as above set forth, that he was exceeding or had exceeded the amount he was able to collect on said tax-bill, till after said work was completed; nor did it appear that, in his said work and expenditures, the plaintiff did ex

Stone v. Huggins.

ceed what might have been collected by him on said tax-bill, if he had had full authority in law to enforce such collection.

The plaintiff brought a suit against the town of Windsor and West Windsor, (said towns prior to January 1st, 1849, constituting the single town of Windsor, but were at that time divided in pursuance of an act of legislature,) at the May Term, 1850, of the Windsor county court, being an action of book account, to recover the same account for labor and expenditures, that the present action is brought to recover of the defendant, in which first named action, final judgment was rendered for the defendants by the supreme court, at a special term in June, 1851.

The auditor reported $ 135.85 as the balance due to the plaintiff, subject to the opinion of the court as to $ 41.50 for which the plaintiff had become liable under circumstances detailed in the report, but which he had not actually paid-a more particular statement in reference to which is rendered unnecessary by the decision of the court in reference to the entire claim. The auditor also made an additional report, the only part of which, which it is necessary to set forth, being sufficiently stated in the opinion of the court.

The county court, December Term, 1855,-UNDERWOOD, J., presiding, -rendered judgment pro forma for the plaintiff to recover the largest sum reported.

W. Currier and Washburn & Marsh for the defendant.

Coolidge & Safford for the plaintiff.

The opinion of the court was delivered, at the circuit session in October, by

BENNETT, J. This is an action on book, in which the plaintiff seeks to recover of the present defendant his account for certain expenditures in repairing two certain roads in the town of Windsor, in 1848. The case comes up under somewhat peculiar circumstances, and we have endeavored to give it our careful attention.

It is not claimed, by the plaintiff's counsel, that the services and expenditures charged in his account were had upon the personal credit of the defendant ; and in this they take a right view of the

It is clear to my mind, from the auditor's report, that the

case.

Stone v. Huggins.

plaintiff rendered the services and made the expenditures, expecting to be reimbursed for the same, from the avails of a tax-bill, which was put into his hands to work out.

The plaintiff puts his case upon the ground that the defendant contracted with him to do what was done in behalf of the town, and upon their credit and responsibility, and that having failed to give him a legal remedy against the town, he has made himself personally responsible, and that too in this form of action.

It is a common principle, that when a person undertakes to act as an agent for another person, and in his name, without authority for that purpose, and this unknown to the other party, the person assuming to be agent, makes himself personally responsible.

We are met at the threshold of this case with the inquiry whether, upon anything like a fair construction of the report itself, the defendant undertook to bind the town to pay the plaintiff's account. If not, there must be an end of the plaintiff's case, without going further. It becomes necessary to attend carefully to the facts reported by the auditor. It seems Joel S. Houghton was appointed bighway surveyor for District No. 5 in Windsor, in 1848; and as such he received the tax-bill, and assumed the responsibility of highway surveyor. It does not seem to be of importance, in one point of view, what induced Houghton to accept the office, or what were his motives in not going on himself to work out the tax, or what arrangement had been made between the highway surveyor and the defendant in regard to the highway surveyor's having no further trouble with the tax-bill, in case he would go around one day with it and see who would work and who would pay the money. The highway surveyor had become legally responsible to the town for the faithful expenditure of the tax, in repairing the roads in his district ; and, while under this responsibility, he says to this defendant," he must take the tax-bill and work it out or get some one to do it,” which was acceded to by the defendant. Word was sent to the plaintiff by the defendant, that he wished him, “ to come and take said tax-bill, and work it out.” It seems that this application was made to the plaintiff with the concurrence of the surveyor in the plaintiff's being a suitable man to expend the tax. The plaintiff called upon the surveyor accordingly, and got the tax-bill, by the consent of the surveyor; and, when the plaintiff

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