Smith v. Town of Epping

• Decision Date: 28 July 1899
• Citation: 69 N.H. 658,45 A. 415
• Court: New Hampshire Supreme Court
• Parties: SMITH v. TOWN OF EPPING. TRICKEY v. SAME. NORRIS v. SAME.

45 A. 415

69 N.H. 658

SMITH

v. TOWN OF EPPING.

TRICKEY

v. SAME.

NORRIS

v. SAME.

Supreme Court of New Hampshire. Rockingham.

July 28, 1899.

Actions by Nathan Smith, Ida P. Trickey, and Alia A. Norris against the town of Epping. Facts found by the court, and reported. Judgment for defendants.

Assumpsit upon promissory notes. The notes are respectively for $450, $25, and $545, dated October 26, November 26, and December 5, 1892, payable with interest at the rate of 4 per cent. per annum, and signed, "Charles E. Folsom, Wm. H. Underhill, Selectmen of Epping. John Q. Pike, Town Treasurer." The signers held offices as designated, and their signatures are genuine. The notes were given for money paid by the plaintiffs to Folsom when the notes were delivered to them, but Folsom never paid the money to the town treasurer, and the town never had the use of it. The only authority possessed by the selectmen to borrow money in behalf of the town was conferred by the following votes: At an adjournment of the annual town meeting of 1892 held April 23d, under a proper article in the warrant, a plan for a new town house was adopted, the sum of $10,000 was appropriated for building It, and the selectmen were instructed to hire money for the purpose. Also, it was voted "to raise the sum of $3,000 for the foundation and furnishing of the building." Under an article in the warrant for the biennial meeting of November, 1892,—"to raise such sums of money as may be necessary for heating, lighting, and furnishing the new town building in said town," —it was "voted that the selectmen be instructed to hire the sum of $3,000, at 4 per cent. interest per annum, for the purpose of procuring apparatus for heating and lighting and furnishing the new town hall building, grading grounds," etc. The selectmen borrowed, under this authority, between the adjourned annual meeting and October 26th, the sum of $12,312.50, and between the biennial meeting and November 26th the sum of $3,200, and between the latter date and December 5th the sum of $500; all of which sums were unpaid at the latter date. The plaintiffs' notes are not included in these sums. The sum expended for the new town hall and its appurtenances prior to October 26th did not exceed $10,000, and the sum expended after that date and prior to the annual meeting of 1893 (all paid in January, 1893) was about $2,000. If. upon the foregoing facts, the plaintiffs' notes bind the defendants, each plaintiff is to have judgment for the amount due upon his or her respective note; otherwise the defendants are to have judgment.

Edwin G. Eastman and Aaron L. Mellows, for plaintiffs.

John S. H. Frink, William H. Drury, John T. Bartlett, and Joseph F. Wiggin, for defendants.

BLODGETT, C. J. It being found that the money borrowed of the plaintiffs did not go to the use or benefit of the defendants, and there being nothing which tends to show that the transaction was in any other manner ratified by them, there can be no recovery unless the plaintiffs prove that their notes were issued by the selectmen in the exercise of a lawful authority conferred by the defendants. Rich v. Errol, 51 N. H. 350, 361; West v. Town of Errol, 58 N. H. 233, 234. This they have failed to do. On the contrary, assuming—as it must be—that the vote of April 23d "to raise the sum of $3,000 for the foundation and furnishing of the building" was a vote to raise that sum by taxation, the conclusion is unavoidable that, when the plaintiffs' notes were given, the authority of the selectmen to borrow money under the special votes authorizing them to do so had ceased. The specific acts which they were alone authorized to do had been fully accomplished, their special and limited authority had been exhausted,...