Andover vs. Grafton, 7 N.H. 298 (1834) - Opinion

cited N. H. Laws 453; 2 N. H. Rep. 254, Sanborn vs. Deerfield; 5 Conn. Rep. 367, Griswold vs. North Stonington; 6 Mass. Rep. 502, Dalton vs. Hinsdale; 3 Mass. 436, Salem vs. Andover; 2 N. H. Rep. 470, Rumncy vs. Allenstown; 3 Pick. Rep. 207, Mills vs. Wyman; 3 Bos. íf Pul. 247, Wennall vs. Adney; 6 N. H. Rep. 386, Copp vs. Sawyer; 16 Mass. Rep. 48, Norton vs. Mansfield.

cited 12 Mass. Rep. 309, Embden vs. Augusta; 13 Mass. 555, Andover vs. Canton; 16 Mass. 102, Shutesbury vs. Oxford; 3 N. H. Rep. 38, Hanover vs. Eaton; N. H. Laws, 457; 1 Pick. 123, Belfast vs. Leominster.

Selectmen have not a general authority to bind their town by note, or any other contract. Their authority is limited, and they bind the town only when acting within the scope of it.

They have the power of managing all the prudential affairs of the town. N. H. Laws, 453. They are specially required, in case of the insufficiency of highway taxes, to cause highways and bridges to be repaired at the charge of the town, so as to render them safe and passable. Ditto, 579. They may of course pledge the credit of the town for the necessary labor and materials, and the contract they make will be binding upon the town, both as to price and time of payment.

So when any person is poor and unable to maintain him or herself, such person is to be relieved and maintained by the overseers of the poor (who are usually the selectmen) of the town where such person shall happen to be; (N. II. Loaos, 305) certainly not at their own charge, nor upon their own credit, but at the charge of the town; and if, as often happens, funds sufficient arc not provided, then on the credit of the town. And the selectmen may make a contract for the maintenance of such poor person, and agree upon a price and time of payment.

They are also required to pay executions against the town out of any money in their hands, — and if they have none, may assess and collect it in thirty days; and if such execution is not paid within sixty days after notice from the officer, their bodies, goods and estates are liable. N. H. Laws. 108. And it has been already decided that they may pay existing debts of the town which are of a character requiring immediate payment, and recover the amount of the town. 2 N. H. Rep. 251, Sanborn vs. Deerfield.

There are certain cases, then, in which it is within the scope of their authority to bind the town by their contract. There is surely no reason why those contracts may not be reduced to writing; and there is good reason why they should be, in many instances, as it tends to prevent misunderstandings, and uncertainty as to the terms of the contract.

If their contract may be reduced to writing so far as the service to be performed is concerned, it may, on the other hand, be so with respect to the sum and time of payment. Nor is it essential that their contract for payment should possess any particular form. It may take the shape of a promissory note as well as any other form. 4 Pick. 128, Belfast vs. Leominster. If authority to give a promissory note would subject the town to greater disadvantages than any other form of written contract, there might be an objection to holding that they have authority to put the contract in this shape. But none are suggested in the argument, nor are any perceived.

If a recovery could be had upon a promissory note signed by the selectmen, upon proof merely of the execution of it, there would be an objection to permitting them to bind the town by such a contract, as it would place the town in a more disadvantageous position in the defence, than a contract in another shape. It would cast upon them the burden of proving that the note was given under such circumstances that it was not binding upon the town, for want of consideration or authority in the selectmen to give it.

But it is apparent that such cannot be the case. The authority of the selectmen to bind the town by contract being a limited authority, it will be necessary for the holder to prove, notwithstanding it purports to be for value, that it was given by the selectmen acting within the scope of their authority, as he cannot otherwise show them agents for the purpose. Of course he must show that the note was given for materials or labor in repairing highways, or for the support of a pauper, or for some other matter in which the selectmen were authorized to bind the town. And this being done, the whole matter of a want or failure of consideration, or any other defence, is as open to the town as if the contract, instead of being expressed to be for value received, had contained the stipulations to be performed on the other side, or had set forth that in consideration the promissee had performed such a service, it had been agreed by the selectmen that he should be paid a certain sum. Nor is it any objection, that, if the contract may take this shape, it may be made negotiable, and the town thus be made liable to pay a third person. It is ordinarily immaterial to the town to whom payment is to be made. The selectmen are not confined to the employment of an individual, but have power to contract with one or another in the-first instance, If the contract was-in any'other shape, the beneficial interest in⅜ might be assigned,'and the interest-of' the, assignee would bes’ protected,.. And an endorser, who shook! take such note, even before due, would receive it subject to a liability to make the sanie proof respecting the authority of the selectmen.-to' execute it, in that particular case, as would be required-of. the.promissoe and of course must be chargeable with notice of all. the facts, and-the.note-in his hands be-liable-to. the.-same defence as'-in the hands, of the original prornisseeA Vide 5 Taunt. 792, Slark vs. Highgate Archway Company,

•- There are cases, then, in which selectmen may, bind the town-by a promissory, note-.; Is this-ease.of that character?

It is.objected, that the; selectmen had no. such, authority here, because no.legal notice that the pauper was-supported.by Andover had been served on them;’.

.A notice is-the necessary foundation of a, suit to enforce the legal liability of the town in which the settlement is-; but, it-has never been supposed that it was. necessary-a suit should be commenced, if the selectmen were willing to pay,' It is their duty to pay, if they have funds, and are satisfied of the liability-of their town; and if, they have-not funds in their hands, they ought in prudence to make some arrangement, if practicable, whicfrwilbpreVent cost,' - -

If; then, they, receive.information in any.way.that a pauper who has his settlement in their town is..receiving. support in another, and that it is intended to charge the town for such support, And this within the time.-the law-allows for a legal notice, they may act upon, such, information.' There is no obligation upon them to wait, and endeavor to avail themselves of all technical un-takes which may be mode by the other party r and tins wed l-nw m w> -In nr.ly reason why they should wait. iJ ¡hr >’ >,,;t!. - ment in the town the) a; icscnf. Tun, n s, n-w. a.-. none; but we perceive neither the legal obligation, nor the moral duty, which points to-such a course.: - - It has even been held that the selectmen may bind the town by a contract not to take advantage of any defects in a notice. 3 N. H. Rep. 38. Hanover vs. Eaton, Although such contract could not be specifically enforced, because not made in court, and forming therefore no part of the record. 2 N. H. Rep. 131, Hanover vs. Weare.

This objection, therefore, must be overruled.

Another objection, however, appears upon the face of this case, which is, that the note is signed by but one of the selectmen. He signs his own name, “for the selectmen,” and his agency was that of a selectman only.

The general rule is, that where an authority for private causes is given to two or more, all must join in executing it. Co. Litt. 181, b.; 2 Inst. 380; Bac. Abr., Authority C.; 12 Mass. Rep. 185, Kupfer vs. The South Parish in Augusta; 2 Pick. 253, Damon vs. Granby; 3 Pick. 244, First Parish in Sutton vs. Cole; 6 Pick. 198, Copeland vs. Mercantile Insurance Company; 5 Binn. 481, Case of Baltimore Turnpike.

But by our statute, in all cases where any thing is enjoined to be done by the selectmen of any town or place, it shall be sufficient if done by the major part of such selectmen. N. II. Laws, 453.

A majority of the selectmen might in this case have lawfully bound the town, by executing a note for that purpose, but this note purports on its face to be executed by one only, acting for the others. It appears from the case, that another of the selectmen had previously assented that Kelton, who signed the note, should settle the account and give a note.

A delegated authority, however, can in general be executed only by the persons to whom it is given; and where the authority is given to several, one of the number cannot be substituted. 3 Merivale’s Rep. 237, Blore vs. Sutton; 12 Mass. 237, Emerson vs. The Providence Hat Manufacturing Company; 4 Mass. 522, Inhabitants of Stoughton vs. Baker; Payley on Agency, 148; Bac. Abr. Authority D. There are cases in which one selectman may act and bind the town, with the assent of the others; and in some cases the assent of the others may be presumed. 4 Green. Rep. 298, Inhabitants of Windsor vs. Inhabitants of China; 3 N. H. Rep. 290, Lee vs. Deerfield.

But this principle cannot in our opinion be applied to written contracts or official signatures.

A majority of the selectmen may lay out a highway. Should one of them give to another authority to settle the place of location, and lay out the way, and that other do so, and make a return, signed by him “for the selectmen,” it would clearly not be good. So if they agreed upon the place, a return of their doings, signed by one, for the others, would be insufficient.

So an indenture executed by one, ‘ for the selectmen,’ would not carry upon its face evidence of an execution by a majority of the selectmen so as to bind the town.

Parol evidence of the assent of another of the selectmen could not in such case add his signature: and so in this case, parol evidence of a delegation of authority by another of the selectmen cannot be admitted to supply his name to the note, or make it the promissory note of the town. 3 Stark. Evid. 997; ditto 1006.

Had the selectman who signed the note, placed with his own name that of the other selectman who authorized him to settle the account and give a note, perhaps the evidence respecting the authority might have been sufficient to have rendered it valid, as it would then have purported to carry on its face evidence that it was the act of the town, by a majority of the selectmen; but even in that case it would deserve consideration, whether authority to do this could be delegated, and whether it could be legally done unless the other selectman was present, and assenting at the time of the execution of the paper. 4 D. & E. 313, Ball vs. Dunsterville; Bac. Abr., Authority, C.

Whether the corporate name, if affixed alone, might. not *306Étave been sufficient, coupled with eyidoiice shewing it to have been placed there with the-assent of a; majority of the selectmen, we have-not considered, as.that was-no.t the mode of execution adopted in this case.. A’similar objection to that last suggested would arise in-such case.,. -