Baker v. Inhabitants of Windham

[80] The action was continued for advisement, and the opinion of the Court was afterwards drawn up by Weston C. J. ‘The vote of the town, upon which one of the counts in the plaintiff’s declaration is based, would not, and could not, upon its mere production, maintain the action. It would be still necessary for the plaintiff to show that a suit had been instituted, and costs had been incurred, on account of Gray line. If he is not to be permitted to do this, the vote is merely illusory and inoperative. The parol testimony was not adduced to explain or extend the vote, but to apply it to its proper subject matter. It is of the same nature, with that which is received to show the location of monuments, referred to in a deed, or the identity of a party. It was not enough for the plaintiff to show, that he had a suit with Atlcins Small. It was necessary for him to prove, that it was on account of Gray line. The writ would not show that fact. Or if on inspection, Gray line might be set forth as one of the bounds of the land described in the declaration, it would not thence appear, that the location of that line was in controversy, or that the action was brought to settle it. It appears to us, that the best evidence, the nature of the case admitted, was resorted to for this purpose; and that no legal objection to its competency can be sustained. The vote assumes, that there was a dispute about Gray line. The plaintiff proved, that the proper town authorities of Wind-ham, their selectmen and town agent, were desirous of having that line established. Aware that the plaintiff claimed a part of the disputed land, they solicited the privilege of bringing an action in his name against Small, an opposing claimant, avowedly for the purpose of determining the controverted line. The plaintiff was unwilling to be put forward in the controversy, unless he could be indemnified in relation to the expense, notifying them that he would run no risk, which might expose him to costs. Thus put upon their guard by the plaintiff, and apprized of the condition upon which alone he would consent to have his name used, the town outhorities caused the action to be prosecuted, the writ having been made by the town agent, upon consultation with the selectmen. These facts were communicated to the [81] town, when the subject was brought before them in town meeting; and they are perfectly consistent with their vote, and render it intelligible. When once the fact is established, as it certainly is from the evidence, as well as from the express finding of the jury, that the suit was brought on account of Gray line, it results that all the costs arising in the same, were on the same account ; and it was against these costs, that the vote undertook to indemnify the plaintiff. The vote in favor of Varney was admissible, not to explain or qualify the vote in favor of the plaintiff, but to show in connection with the parol testimony, that the plaintiff was not satisfied with such a vote, as passed to indemnify Varney. The plaintiff’s case did not require this testimony. It merely went to corroborate, what was sufficiently proved before, that he was unwilling to incur the hazard of costs. There can be no doubt that the plaintiff had interests involved in the suit, other than the costs, and this was well known to the town, when they passed their vote. It was for them to consider whether they would assume the whole expense of the prosecution, or require contribution from him. And being advised, that he would consent to the use of his name upon no other terms, they assumed the whole. And it was equally his right to consider and determine, whether lie would bring an action on his own account, or whether he would not rather endeavor to compromise with the opposing interest, or forego his claim altogether. The result was, that he would not bring the suit on his own account, of which he apprized the agents of the town. But he said to them, and through them to the town, you may bring the suit in my name : but it must be upon the express condition, that I am not to run the hazard of any part of the expense ; and thereupon followed the vote of indemnity. If the town authorities acted advisedly, and one of them was by profession a lawyer, they must have contemplated that a lawsuit is liable to many contingencies. A defect of title on either side may develope itself, which had been overlooked. There may be an apparent defect, arising from a want of testimony to meet an objection unexpectedly made. It should have been foreseen, that the plaintiff might fail in his action from other [82] causes, than an adverse determination of the Gray line. And if upon such a result, they would have thrown the expense upon him, the selectmen and town ágent, in their negotiations with him, and the town in their vote, should have provided accordingly. No condition to this effect is to be implied from the terms of the plaintiff, or the vote of the town. It was expressly negatived by the one, and not insisted upon by the other. Hence the evidence of title given by the plaintiff, on the trial of this cause, may be regarded as immaterial. It was not necessary to support the present action ; and it could not prejudice the defendants. The plaintiff did not volunteer his name for their use. They sought it; and if they were disappointed in the result, the fault cannot be imputed to him, nor does it impair his claim to indemnity. Aside from the parol testimony, which we are of opinion was properly received, the correctness of the transposition in the terms of the vote, to which the Judge resorted by way of illustration, might perhaps be questionable ; but with that testimony, it does appear that the action was brought on account of Gray line ; and hence the vote of indemnity extends to all the costs in that action, as the jury were instructed. Upon the whole, we are of opinion, that the objections taken by the defendants have not been legally sustained. Judgment on the verdict.