Fuller v. Mower

Walton, J. The material facts in this ease are few. The plaintiff asked one J. M. Skinner, then chairman of the board of selectmen of the town of St. Albans, if the town was in need of money, and whether the selectmen were authorized to hire money in behalf of the town; and, having received affirmative answers, [387] lie let Skinner have f 300 and took a town order for it. What Skinner did with the money does not appear. He has absconded, and it may be that he embezzled it; but of tiiis there is no proof. The order was signed by Skinner, and purports to have been signed by the defendant, who was also a member of tbe board of selectmen. But this use of the defendant’s name was not authorized. The defendant had signed four or five blank orders to he used in the renewal of some orders then outstanding against the town, and Skinner, without the knowledge or consent of the defendant, used one of these blanks on which to write the plaintiff’s order. The defendant testifies that be never authorized or ratified this use of his name, and had no knowledge of the transaction till this action was commenced against him. Tbe action is in form an action on tbe case for deceit. The plaintiff charges the defendant with having falsely and fraudulently represented to him that he and Skinner had authority to hire money in behalf of the town, and to execute valid orders therefor, when in truth and in fact they had no such authority. Can the action bo sustained? We think not. We have examined the authorities with care, and given to the question much thought, and we can find no satisfactory ground on which a decision in favor of the plaintiff can rest. We assume that Skinner practiced a fraud upon the plaintiff, but we can find mr rule of law which, upon the facts established by tbe evidence, will make the defendant responsible for that fraud. The defendant made no false representations to the plaintiff. Ho had no knowledge of the transaction, or any connection with it whatever,, except that he had signed a blank order for another and a different purpose, and Skinner, without his knowledge or consent, used the blank on which to write the plaintiff’s order. The argument is pressed upon us that Skinner ought to be regarded as the defendant’s agent; but we can find no rational, ground for so regarding him. Selectmen are not the agents of each other. Between them the relation of principal and agent does not and can not exist. Their authority is not transferable. An attempt to transfer it would he null and void. One selectman can not possibly exercise the authority of another. The law does not allow it. And the plaintiff is chargeable witb notice of this fact [388] and he can not be allowed to say that in making his contract with Skinner, he supposed Skinner was acting as the agent of either of the other members of the board. He could, if he chose, rely upon Skinner’s word that another member of the board had sanctioned the contract; but for the truth of such a representation he would have no right to rely upon any one except Skinner. And, evidently, the plaintiff’s loss is the, result of his reliance upon Skinner. If he had made his contract with a majority of the board, as the law requires all such contracts to be made, and had delivered his money into the custody of a majority of the board, there is no reason to suppose that he would have lost it. Or, if he had consulted a majority of the board, undoubtedly he would have been informed of the want of authority in the selectmen to hire money for the town, and thus avoided his loss. But he seems to have had full confidence in Skinner. He consulted him alone, he añade his contract with him alone, he delivered his money to him ¡alone, and if he loses it, we think he must look to Skinner alone Jor his indemnity. It is urged that the defendant was careless in signing a blank •■order and leaving it with SMnner. Perhaps he was. It can now ■be seen that it was dangerous to do so. But the defendant was not more careless in trusting Skinner with a blank order than the plaintiff was in trusting Mm with money when no other member • of the board was present to witness or sanction the transaction. And in this particular they are in pari delicto. And if it be true, ■ as counsel urge, that Skinner’s fraud would not have been possible but for the defendant’s negligence, it is equally true that ■the fraud would not have been possible but for the plaintiff’s negligence. Both trusted him and both were deceived by Mm. But negligence alone, if proved, will not support the action. The gist • of the action is the alleged fraud and deceit, and, unless these are proved, the action is not maintained. Tryon v. Whitmarsh, 1 Met. 1; Kingsbury v. Taylor, 29 Maine, 508. And very clearly .the allegations of fraud and deceit on the part of the defendant ■are not proved. Judgment for defendant. Peters, C. J., Danforth, Virgin, Emery and Foster, J'J., •concurred.