Reed v. Inhabitants of Lancaster

Devens, J. No directors of the almshouse having been chosen, the overseers of the poor, by whom the contract was made upon which it is sought to charge the defendant town, were entitled to act as such. Pub. Sts. c. 33, §§ 1, 3. But even if we assume that the contract, so far as its form merely was concerned, was one by which the town might have been bound, it was not of such a character that the town could be made responsible thereon. The contract which they undertook to make in February, 1888, was for the services of the plaintiff and his wife from April, 1888, to April, 1889. There were then but two overseers of the poor, one of the original members having resigned. The vacancy would be filled at the next annual town meeting thereafter, which would occur on the third Monday of March, 1888. The town had adopted the statute which authorizes the election of the members of the board of overseers for three years, one member being elected each year to take the place of the member then retiring. In March, Kilbourn was chosen to take the place of the member who had resigned previously, and whose term would have expired at that time. Pub. Sts. c. 27, § 69. By the Pub. Sts. c. 27, § 71, it is directed that boards of overseers shall annually within seven days after the annual town meeting choose a chairman and a secretary, the latter of whom need not be a member of the board. It would seem that this direction had not been complied with; at least, Stowe, who assumed to act for the overseers, does not describe himself as chairman. The duties which overseers of the poor are to perform, are those connected with the immediate care and relief of the poor; and when the duties of directors of the almshouse are imposed upon them, they continue of this character. They are not authorized to make executory contracts which are not to be performed, or even entered upon, until after other members are added to their board who are entitled to be consulted upon and to act in the matter, except such as are re [504] quired in order that the care and supervision of the institution may be continued until the new board is prepared to act, or such as are necessary to furnish a proper equipment for the institution for a reasonable time. The annual change in the constitution of the board implies that as reconstituted it will not be hampered or embarrassed, much less controlled, by the action of its predecessors. Again, the contract which the overseers undertook to make was one for the management of the almshouse during the following year. It would have been entirely competent for the town at its next annual meeting, and before this contract became operative, to choose a board of directors of the almshouse distinct from the overseers of the poor, who only perform their duties when no such board is chosen. It certainly could not be intended that such a board should be obliged to carry out the executory contracts of the overseers, and that the town in withdrawing the duty of managing the almshouse from the overseers should find itself trammelled with their obligations, and subjected to the responsibilities which they had undertaken as to the future management of it. At the close of the evidence that Holman, by whom the contract was not actually signed, assented to the agreement with the plaintiff, the signature of Stowe, the other member, being “ for the overseers,” the instrument relied on as a contract was offered in evidence, against the defendant’s objection. “ ISTo evidence was subsequently offered,” the bill of exceptions finds, “ by the plaintiff, tending to show ratification of the contract or instrument by the defendant town.” Kilbourn, the third member of the board of overseers for the year 1888-89, testified that he had never seen the contract or instrument in question, but he understood there was some sort of agreement or contract of the town with the plaintiff, and had been infomied somewhat as to its terms. The defendant asked the court to rule that there was no evidence upon which the plaintiff would be entitled to recover against the defendant town upon the written contract relied upon by the plaintiff. This the court declined to do, and afterwards submitted to the jury the question whether the board of overseers for 1888-89 ratified the contract made in February, 1888, ruling that they could adopt and make valid as against the de [505] fendant town the contract previously assumed to have been made, even if when made this was invalid. The evidence of Kilbourn, which is the only evidence on this subject, fails to establish any ratification by him, or by the board after he became a member of it, and the defendant was entitled to the ruling requested. If a ratification can be made of a written contract, either orally or by acts in pais, so that the person is bound as if he had signed the written contract, and may be treated as if he had done so, which we do not decide, there can be no such ratification except with a full knowledge of what is ratified. It is not enough, from the fact that a person acting in a public capacity knows that there is “ some sort of a contract,” and “ something of its terms,” to infer that he has so assented to it that he makes those on whose behalf he is entitled to act responsible thereon. This evidence cannot supply his signature to the contract, or make that of the one who has assumed to sign for the overseers his signature. Nor does the case afford any evidence of the action of the board of overseers after the action of Kilbourn tending to show ratification. If ratified, it must have been so by them as a body and not individually. While they may act by a majority, the members are still to act together, and not by the agreement of members separately obtained. Pub. Sts. c. 3, § 3, cl. 5. Mayor & Aldermen of Worcester v. Railroad Commissioners, 113 Mass. 161. Shea v. Milford, 145 Mass. 525. The fact that the plaintiff continued to render service at the almshouse after the new board was organized, and until November 1, 1888, would not tend to show that the new board had ratified an invalid ex-ecutory contract, so that he would be entitled to claim damages against the town for a breach thereof. Exceptions sustained.