42 N.H. 125 (N.H. 1860), Backman v. Town of Charlestown

Citation:42 N.H. 125
Opinion Judge:BELLOWS, J.
Attorney:Snow, for the plaintiff. Cushing & Chapin, for the defendants.
Court:Supreme Court of New Hampshire

Page 125

42 N.H. 125 (N.H. 1860)




Supreme Judicial Court of New Hampshire.

December Term, 1860

Page 126

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The power of selectmen of towns to make rules to govern agents appointed by them, extends to the purchase as well as the sale of spirituous liquors, and under that power they may prohibit the use of the town's credit altogether.

If, however, these rules are willfully made so stringent as to defeat the object of the law, the selectmen would be subject to indictment in the same way as if they refused to appoint an agent at all.

When the appointment of such agent contains a prohibition of the use of the town's credit, and is duly recorded as required by law, every one who sells liquor to him is charged with notice of such limitation, and can maintain no action against the town for the price of the liquors.

When the time of making the record does not appear on its face, yet as a record is required by law, the seller is put upon inquiry as to the nature and extent of the agent's authority, and will stand charged with notice of all that reasonable inquiry would have given him.

If, however, the goods had been purchased by the agent, assuming the right to pledge the town's credit for the price, and the town had afterward received them with a knowledge of the way they were purchased, and applied them to its use, this would have been a ratification of the agent's authority, and the town would be bound.

THIS was an action of assumpsit for goods sold and delivered ($190), and upon an account annexed as follows:

New-York, April 17, 1856.

Town of Charlestown (S. B. Osgood, agent);

Bought of Charles Backman:

1/8 cask of pale A. S. brandy, fourth proof, 20 1/2 gallons, at $4, $82.00
1 barrel Swan gin, 43 gallons, at $1.50, 65.75
1 barrel alcohol (95), 42 gallons, at 64 cts., 26.88
Cartage, .38
It appeared that one W. W. Drew was a traveling agent of the plaintiff, for soliciting orders and collecting bills, and was at Charlestown, in April, 1856, and called on Solomon P. Osgood, and by his order wrote to the plaintiff as follows:

" Charlestown, April 14, 1856.

Friend Charles: Dear Sir--Please send to the town of Charlestown, N. H., one barrel of alcohol (95), at market price; one barrel of gin, at $1.50; and one eighth cask of pale brandy, at $4. Make and send bills to S. B. Osgood, agent, Charlestown depot. Please pay freight, as Boston folks have done so. Send as good as you can afford to. W. W. DREW." Drew testified that Osgood ordered the liquors for the town of Charlestown, and said he was agent for the town; said he was town agent, but the witness does not recollect that he said any thing of charging the goods to the town of Charlestown. The plaintiff's sales of liquors were all made in New-York. The plaintiff introduced the deposition of S. L. Fletcher, who testified that he was in mercantile business in Charlestown, in 1855 and 1856, with S. P. Osgood, who then acted as an agent of the town of Charlestown for the purchase and sale of spirituous liquors. To this evidence it was objected that an agency for the sale of spirits for a town, under the statute of 1855, can not be proved by showing that a person acted as such agent; but the court held the evidence admissible, and the defendants excepted. The deposition stated that Osgood acted as agent of the town from August, 1855, to May 1, 1856, after which Dr. Adams acted as agent. When Osgood ceased to be agent there were liquors on hand, which were delivered over to the next agent, May 1, 1856. The witness recollected that, shortly before, there were among these two casks, marked S. B. Osgood, agent, one of which contained gin, the other alcohol, B, in the name of Osgood being inserted, as he remembers, instead of P. No others were so marked. A letter, inclosing a bill, was sent by the plaintiff to Osgood, the same before spoken of by another witness, and was received before the liquors arrived. The liquors were marked S. B. Osgood, agent, and the two casks of gin and alcohol agreed with the bill. He was there when the liquors on hand were passed over to the next agent, but can not say that either of those casks was then on hand or passed to him; but all which were on hand were so passed. Osgood received liquors from the town, of different kinds, when he began to act as agent. The bill referred to was put in evidence, and corresponded with the account annexed to the writ. The plaintiff having closed his case, the defendants moved for a nonsuit, which the court declined to order. The defendants then introduced C. Kimball, town-clerk of Charlestown, who produced a book of records of Charlestown, containing 103 pages of records, and 30 distinct subjects of record, without any index, and the plaintiff objected to its admission; but the court admitted it, and the plaintiff excepted. In this book was recorded the following appointment:

" To S. P. Osgood, of Charlestown, in the county of Sullivan. We, the subscribers, selectmen of Charlestown, in conformity to the law of New-Hampshire, passed June session, 1855, entitled "An act for the suppression of intemperance," do appoint you an agent for said town of Charlestown, for the purchase of spirituous and intoxicating liquors, and for the sale thereof, at the store now occupied by Fletcher & Osgood, to be used in the arts, or for medicinal, mechanical and chemical purposes, and wine for the commemoration of the Lord's supper, and for no other use or purpose whatever. In the purchase and in the sale of such liquor you are to conform strictly to law, with the following additional rules and regulations, adopted by us, the selectmen of Charlestown: (1) You are not in any case to...

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