Moores v. Inhabitants Of Town Of Springfield.

• Decision Date: 28 February 1949
• Citation: 64 A.2d 569
• Parties: MOORES v. INHABITANTS OF TOWN OF SPRINGFIELD.
• Court: Maine Supreme Court

64 A.2d 569

MOORES

v.INHABITANTS OF TOWN OF SPRINGFIELD.

Supreme Judicial Court of Maine.

Feb. 28, 1949.

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COPYRIGHT MATERIAL OMITTED.

Exceptions from Superior Court, Penobscot County.

Action of special assumpsit by Clyde Moores, doing business E. & A. Moores, against the Inhabitants of the Town of Springfield, on town orders drawn by selectmen of defendant town upon the treasurer of town. To review a ruling of justice accepting report of referee against written objections, plaintiff brings exceptions.

Exceptions sustained.

Atherton & Atherton, of Bangor, for plaintiff.

E. Donald Finnegan, of Bangor, for defendant.

Before STURGIS, C. J., and THAXTER, MURCHIE, TOMPKINS, MERRILL, JJ.

MERRILL, Justice.

Exceptions to acceptance of report of Referee. This is an action of special assumpsit brought by Clyde A. Moores, described in the writ as doing business under the name and style of E. & A. Moores, on twenty town orders drawn by the Selectmen of the defendant town upon the Treasurer thereof. The orders were all negotiable in form, being payable in each instance to named persons or order. The orders were presented for payment and were all accepted in writing by the Town Treasurer with the exception of three which were accepted by the Assistant Treasurer, one of which was directed to the Town Treasurer, Jennie Monroe, and accepted by her as Assistant Treasurer. The declaration consists of twenty separate counts, one on each of the several orders. The plaintiff sues as either the payee of the order or as endorsee thereof. The orders were introduced in evidence and those payable to third parties are all endorsed with the exceptions of two, they being those numbered 576 and 145. The orders may be grouped as orders issued to pay for pauper supplies, for the salary of the plaintiff as a Selectman, one for a bush scythe and the remainder for labor on roads. The pauper supplies are divided between supplies for State paupers and supplies for a pauper belonging to a neighboring town. The road work is divided between labor on third class road, maintenance of third class road, labor on town road, labor on State road, labor on improved road and ‘snow plowing’.

The plea was the general issue with a brief statement. The brief statement set forth the following grounds of defense: (1) the statute of limitations to the first thirteen counts; (2) that at the time of execution of the several orders sued upon the defendant town was indebted in excess of the amount allowed by law; (3) that the officers executing the orders were never authorized to sign the same and had no authority to obligate the defendant town; (4) that the plaintiff at the time the orders were executed was a Selectman of the town of Springfield and, as such, was an interested party because some of the orders were payable to him and the other orders came directly into his possession ‘which is contrary to Revised Statutes, Chap. 80, Sec. 78.’ The defendant also filed an affidavit denying signature and execution of the orders in accordance with Rule X of the Supreme Judicial and Superior Courts.

The case was referred under Rule of Court with right of exceptions in matters of law reserved. The Referee filed a report finding for the defendant. Written objections were filed to the acceptance of the report. The Justice of the Superior Court presiding accepted the report and to his ruling exceptions were filed and allowed and it is on these exceptions that the case is before us.

Rule XXI of the Supreme Judicial and Superior Courts provides, ‘Objections to any report offered to the court for acceptance, shall be made in writing and filed with the clerk and shall set forth specifically the grounds of the objections, and these only shall be considered by the court.’

As said of this Rule in Camp Maqua Young Women's Christian Ass'n v. Inhabitants Town of Poland, 130 Me. 485, 486, 157 A. 859, 860: ‘The invariable practice in this state has been that there must be a strict compliance with its provisions, if the exceptions are to be considered by this court. Inhabitants of Bucksport v. Buck, 89 Me. 320, 36 A. 456; Witzler v. Collins, 70 Me. 290, 35 Am.Rep. 327; Maberry v. Morse, 43 Me., 176.’

The first objection, that there is ‘no evidence to support the findings of such facts as must necessarily have formed the basis of said decision,’ is in effect a statement that the Referee found for the defendant without any evidence to support his findings. This raises a question of law upon which the plaintiff is entitled to be heard on his exceptions to the acceptance of the report. Staples v. Littlefield, 132 Me. 91, 167 A. 171.

The second ground of objection ‘that said decision is based upon an erroneous application of the established rules of law’ is too general, and the exception based thereon cannot be considered. This objection does not in any way specify in what manner, or which rules of law were erroneously applied. Throumoulos v. First Nat. Bank of Biddeford, 132 Me. 232, 169 A. 307.

The other specific objections are in effect covered by the first general objection and the exceptions based thereon will be disposed of by our determination of the exception based on the first objection. They all relate to and are based upon the alleged erroneous application by the Referee of the constitutional limitation of the amount of municipal indebtedness to the town orders given for pauper supplies, labor on town road and the order given for Selectman's salary.

As above stated, this action is special assumpsit brought by plaintiff either as payee or endorse of town orders. The fact that the orders are negotiable in form, and in some instances have been endorsed by the payee thereof to the plaintiff does not exclude any defense available to the town at the time of their issue. Whoever receives them either as payee or endorsee does so subject to any legal defense to the claim for which they were issued. Sturtevant v. Inhabitants of Liberty, 46 Me. 457. As well stated in Parsons v. Inhabitants of Monmouth, 70 Me. 262, 264: ‘The general financial officers of towns frequently draw orders upon the treasurers for the payment of some legitimate indebtedness of the town, but such instruments are mere vouchers for the treasurer's disbursements. And though frequently made negotiable in form and therefore have the quality of negotiability so far as to authorize the holder other than the payee to bring his action in his own name if occasion requires, still they are in nowise commercial paper free from equitable defenses, in the hands of bona fide indorsees. Willey v. Inhabitants of Greenfield, 30 Me. 452; Sturtevant v. Libbey, (Inhabitants of Liberty), 46 Me. 457; Emery v. Inhabitants of Mariaville, 56 Me. 315; Bessey v. Inhabitants of Unity Plantation, 65 Me. 342. Any view counter to this in Chamberlain v. Inhabitants of Guilford, 47 Me. 135, is not sound.’

It therefore follows that any defense which existed in favor of the town against the claims for the payment of which these orders were issued is available to the town as a defense to the orders.

The defendant claims that the plaintiff cannot recover on any of these orders because he was a Selectman of the town of Springfield and, as such, was an interested party in the orders which were made payable to him or which came into his possession by endorsement, as the defendant says, in violation of the provisions of R.S. Chap. 80, Sec. 78.

We held in Tuscan v. Smith, 130 Me. 36, 42, 153 A. 289, 73 A.L.R. 1344, that Sec. 43 of Chap. 4, R.S.1916, of which R.S.1930, Chap. 5, Sec. 61 and R.S. Chap. 80, Sec. 78 are verbatim re-enactments, has reference only to cities, and has no application to towns or the municipal officers of the town. As all of the town orders in suit are signed by all three members of the respective Boards of Selectmen, the issuing of such orders to the plaintiff was not in violation of R.S.1930, Chap. 5, Sec. 60, now R.S. Chap. 80, Sec. 77, the plaintiff being but one of the three Selectmen acting in the premises. Tuscan v. Smith, supra.

The question of legality of these orders due to the fact that the plaintiff was a Selectman of the defendant town must be determined by the rules of the common law. It is true that certain of the orders are for pauper supplies furnished by the plaintiff or the firm of which he was a member to the defendant town. The relief of paupers, however, is not in the hands of the Selectmen of towns but in the hands of the Overseers of the Poor. The record in this case fails to show that the plaintiff was an Overseer of the Poor or that in his official capacity as Selectman he had any duties to discharge with respect to the furnishing of these pauper supplies. The record does not disclose facts which would make the decision of Lesieur v. Inhabitants of Rumford, 113 Me. 317, 93 A. 838 applicable to the instant case.

In the absence of special circumstances, of which there is no evidence in the record in this case, the law does not prevent a Selectman, who was one of those issuing a town order negotiable in form, from acquiring the same as an endorsee thereof, and enforcing the same against the town to the same extent that the original payee thereof could have enforced the same.

There is, however, another defense which may prevent recovery on these orders for pauper supplies which are made payable to E. & A. Moores. None of these orders are endorsed. The plaintiff brought this action in his own name alleging in the writ that he was doing business under the firm name and style of E. & A. Moores. The present record leaves it doubtful as to whether or not E. & A. Moores was in fact a partnership, of which the plaintiff was a member, or whether it was a mere trade name under which the plaintiff alone conducted his business at the time these orders which are numbered 217, 284, 285, 12, 151, 697 and 157 were issued. The Referee in his findings at one place states: ‘the plaintif...