Township of McIntyre v. Walsh

Opinion, Mr. Justice McCollum: The auditors of McIntyre township, in the county of Lycoming, requested the appellant, who was the town clerk, to produce before them at their meeting in January, 1886, the books and papers of the township in his possession, and he promised, but failed to comply with their request. When he was invited to attend their adjourned meeting, he claimed that they were not qualified as township auditors, and declined to appear. They then issued a subpcena, which was duly served on him, and, as he did not obey it, they sent out an attachment, on which he was brought into their presence. They wanted the books and papers, but he did not bring them; so they issued a search-warrant, armed with which the constable hastened to his house, and made diligent search for them. The appellant declared that they should not have the books and papers, and assured them that they had “ the wrong pig by the ear; ” whereupon, they concluded to commit him for contempt, and made out and placed in the hands of the constable their warrant for that purpose. By virtue of this warrant, the constable conveyed the appellant to Williamsport, where an arrangement was effected by which he was to produce the books and papers before the auditors, and they were to abandon the proceedings against him. The auditors were summoned to Williamsport by their counsel, but the settlement was completed before their arrival there, and they approved it. In 1888, the township brought this suit to recover the fees of the auditors for the time it is alleged they spent in trying to obtain the books and papers, their expenses in going to and returning from Williamsport, and reasonable compensation for the services of the constable in the execution of the several writs issued by them. In the settlement between the auditors and the appellant, nothing was said about costs and expenses, and it is not pretended that he ever promised to pay them. There is no evidence of a demand upon him for their payment, or of any notice to him of a claim that he was liable for them, until he appeared in answer to the summons in this action. [309] The case was submitted on the theory that these accrued in consequence of his failure to produce the books and papers before the auditors at their first meeting, as he had promised to do, and that he ought therefore to pay them. The learned judge instructed the jury that they might imply from the facts recited a promise by the appellant to pay the township the fees and expenses claimed. Implied contracts arise under circumstances which, according to the ordinary course of dealing and common understanding of men, show a mutual intention to contract: Hertzog v. Hertzog, 29 Pa. 465. No facts or circumstances appear in this case from which a promise to pay the costs and expenses in question can be implied. There is no evidence which will justify an inference that it was intended by the parties that, if the appellant failed to attend the first meeting of the auditors, he should pay to the township their fees for that day. If any liability accrued after that date, it was because of his refusal to obey their subpoena, and there is no element of contract in that. The terms of the settlement exclude the idea of any recourse by one party to the other for anything growing out of or incident to their difficulty. We do not approve the conduct of the appellant, but we decide that, upon the facts disclosed by the evidence, an action of assumpsit cannot be maintained by the township against him, for the fees and expenses of the auditors, or the services of the constable. The judgment is reversed.