Brown v. Inhabitants of Winterport

• Decision Date: 10 March 1887
• Citation: 9 A. 844,79 Me. 305
• Parties: BROWN v. INHABITANTS OF WINTERPORT.
• Court: Maine Supreme Court

9 A. 844

79 Me. 305

BROWN

v. INHABITANTS OF WINTERPORT.¹

Supreme Judicial Court of Maine.

March 10, 1887.

On report from supreme judicial court, Penobscot county.

Assumpsit to recover the sum of $618.13 loaned to defendants, July 7, 1884.

Barker, Vose & Barker, for plaintiff.

Wm. H. Fogler, for defendants.

EMERY, J. This action, though in the name of the nominal assignee, Brown, is in fact brought by the Mineral Hill Mining Company, to recover of the town of Winterport money alleged to have been loaned to the town by that company. Two of the three selectmen of the town, Arey, chairman, and Ritchie, assuming to act in behalf of the town, borrowed of the plaintiff company $550 as for the town, and gave what purported to be a town note therefor, signed by them as selectmen. This was May 31, 1881. This transaction alone, of course, does not imply a promise by the town to repay the money. To imply such a promise, the plaintiff must establish by evidence two other propositions of fact: (1) That the money so obtained was either paid into the town treasury, or was applied in fact to the discharge of lawful liabilities of the town to that extent; (2) that the town ratified the action of the selectmen in so borrowing and applying the money. Lincoln v. Stockton, 75 Me. 145; Otis v. Stockton, 76 Me. 506.

1. Ritchie, one of said selectmen, testified that all the money thus borrowed was at once used to pay off and take up outstanding town orders previously given for and representing legal liabilities of the town for ordinary municipal purposes, such as schools, streets, the poor, etc. He does not now profess to remember the dates, numbers, amounts, or payees of each or many of these orders, nor for what purpose each was given. He does state quite fully as to some of them. He testifies, however, that all the orders were produced at the time by Mr. Arey, the chairman; that he and Mr. Arey examined them; that he was satisfied at the time of their authenticity, and that they were regularly issued for the usual municipal purposes; that they were recorded with dates, numbers, and amounts, etc., upon the book used by the town officers to record paid town orders. The amount was $556. He says that, after being thus recorded, they were canceled on the spot by burning. The book was left with Arey, the chairman, and it is claimed it was afterwards burned in the fire that consumed Arey's store. Ritchie further testifies that a list or memorandum of all the orders was read at the town meeting held December 6, 1884,—a meeting called to consider the question of repaying this money, and which voted to do so. Mr. Ritchie is not contradicted, and, although the evidence is not wholly satisfactory, and is not so clear and full as we could wish, we think it fairly sustains the proposition that the money was in fact applied to the discharge of the town's legal indebtedness to that extent. Mr. Arey was the holder of these orders, and the defendants urged that the money could not lawfully be applied to the orders held by him, as he was (as the defendants say) indebted to the town at the time in a much larger sum; indebted not simply as a debtor, but as town officer, for money of the town wrongfully appropriated to his own use. Much evidence is in the case upon this question of Arey's indebtedness to the town. We do not think it matters whether and how he was indebted. The plaintiff, in the absence of fraud, (and no fraud upon his part is suggested,) would not be affected by the state of the accounts between Arey and the town. If Arey was indebted to the town even for money wrongfully appropriated, the town was also indebted to him. Each indebtedness was distinct, and of a different nature. Each was outstanding. Neither had been applied towards liquidating the other. He was the holder of certain audited claims against the town, and the plaintiff's money extinguished them. The town thus had the benefit of the money.

2. Two of the selectmen for the year 1884 gave the plaintiff company a town order for $618.13, dated July 7, 1884, to take up the original note, that sum being the amount with interest. They afterwards called a town meeting, to see if the town would vote to pay this order, among others. At this meeting, held December 6, 1884, it was voted that the treasurer hire money to pay the various notes and orders named in the warrant, including the order to the plaintiff compa...