Stone v. Towne

• Decision Date: 11 March 1892
• Citation: 29 A. 637,67 N.H. 113
• Parties: STONE v. TOWNE et al.
• Court: New Hampshire Supreme Court

29 A. 637

67 N.H. 113

STONE

v. TOWNE et al.

Supreme Court of New Hampshire. Merrimack.

March 11, 1892.

Assumpsit by George R. Stone against Omar A. Towne and John W. Staples for money had and received. Judgment for plaintiff.

F. N. Parsons and Sanborn & Hardy, for plaintiff. E. G. Leach and Barnard & Barnard, for defendants.

CLARK, J. The sum of $250 has been drawn from the treasury of the district, on the order of the defendants, as compensation for the services of the board of education. It was the understanding of the voters that the members of the board should receive that sum for their services, and the district makes no objection or claim to the money so paid. Of this sum, the defendants have received $100 each, and the plaintiff $50. The defendants claim that they are entitled to a larger share of the salary than the plaintiff, because the plaintiff did not perform his share of the work of the board. The plaintiff claims one-third of the salary of the board, and brings this action to recover of the defendants $33.33 as the balance of his salary, they having drawn the same from the treasury and claiming the right to retain it. The question is as to the authority of the defendants to apportion the salary. The right of the members of the board of education to compensation rests upon the action of the district. It is not implied or determined from the amount or character of the services rendered. "There is no such implied obligation on the part of municipal corporations, and no such relation between them and officers which they are required by law to elect, as will oblige them to make compensation to such officers, unless the right to it is expressly given by law, ordinance, or by contract Officers of a municipal corporation are deemed to have accepted their office with knowledge of, and with reference to, the provisions of the charter or incorporating statute relating to the services which they may be called upon to render, and the compensation provided therefor. Aside from these, or some proper by-law, there is no implied assumpsit on the part of the corporation with respect to the services of its officers. In the absence of express contract, these regulate the right of recovery, and the amount." Dill. Mun. Corp. (2d Ed.) § 169. It does not appear that any apportionment or discrimination was made or authorized by the district in the distribution of the salary among the members of the board of education, and, in the absence of such provision,...