Aldrich v. Town of Londonderry

— 447 — Tlie opinion of the Court was pronounced by Williams, J. If the town of Londonderry are liable to the plaintiff, it must be on the testimony of Mr. Stoddard; for if the County Court were right, in considering that this testimony did not tend to prove any contract on the part of the defendant, they properly excluded the other testimony offered, which only proved the performance of the services for which the action was brought and the necessity and value of those services. No principle seems to be better settled than this, that there is no implied contract on the part of a town, to pay for services, or relief afforded to a pauper, which was not afforded at their special request. The obligation resting on a town to provide for the poor, is a statute obligation, and may be treated like the obligation of a child to support its parents, or of a parent to support his adult children, to be enforced only in the cases specified in the statute and in the mode therein pointed out. If it was not for the requirements of the statute, and the duty which rests on every citizen to do that which the law requires, there would be no obligation on a toWn which would be considered as a consideration for a subsequent promise. That there can be no implied contract that a town should pay an individual for affording assistance to those who are destitute, and who are in fact paupers, may be inferred from the nature of the obligation they are under, and appears most abundantly from the cases which have been decided both in England and in this country. The general provisions of the statute that the overseers of the poor shall relieve, support, and maintain, their own poor (and there is no similar provision in the English statute,) has never been considered as creating an obligation on a town or parish, which could be enforced at the suit of an individual. They judge for themselves, under the order of a Justice of the Peace in certain cases, the nature and extent of the relief which the necessities of a pauper may require. No individual, without their knowledge and consent, can afford the relief and maintain an action of in-debitatus assumpsit therefor, however urgent or great may be the necessities of the case. The cases in which this — 448 — doctrine has been established are numerous. The case of Aiken et al vs. Banwell, 2 East. 505, and Gent vs. Tompkins, 1 Dow & Ry. 541; Miller vs. Inhabitants of Somerset, 14 Mass. 396; Kittridge vs. Inhabitants of Newbury, do. 448; Edwards vs. Davis, 16 John. 281; Middlebury vs. Hubbarton, 1 D. Chip. 205; Jamaica vs. Guilford, 2 D. Chip. 103; Gallup vs. Pomfret, decided in this County, Aug. Term, 1822; Washburn vs. Vernon Windham, Feby. 1832, & Lowell vs. Pownel, Ben. Feby. 1833, are all of them authorities for this doctrine. We think therefore, there is no right in the plaintiff to maintain this action against the defendants, founded on the consideration alone, that Mrs. Jerald was a “pauper of the town, was in need of relief, and that he offered her the necessary support, arising either from the common law, or the general provisions of the statute before mentioned. The next enquiry then must be whether there was any express request, contract or undertaking on the part of the overseer of the poor of the town of Londonderry, which would authorise the plaintiff to relieve, support, and maintain, Mrs. Jerald, and provide for her physicians and medical attendance as her necessities might require, and recover therefor againt the town in quantum meruit. And it may be remarked if he can recover for the services rendered, during the time claimed, he might upon the same principle recover for her support to this time, if the overseers of the poor had not taken her away. Overseers of the poor, are considered as the agents of the town in relation to taking charge of the poor. In the case of all agents, where their authority is particular and limited, they cannot bind their principal further than they are authorised, more especially, when the extent of their authority is known and disclosed. In this case the extent to which the overseer of the poor of Londonderry was au-thorised, was made known to the plaintiff. It appears that he made known to the plaintiff his purpose in coming to his house, the extent to which he was authorised to contact, and the highest sum he was at liberiy to agree to pay, and this sum was twenty-two dollars a year, the same which they had given the year before. This the plaintiff refused to accept. Now if Mr. Wait was not authorized — 449 — to make any other contract with the plaintiff or to bind the town for any thing beyond that sum, it is difficult to see how he could lay them under an obligation to the plaintiff for an indefinite sum, and for an uncertain period of time, by his failure to contract. It is contended however, that by Mr. Wait’s saying he would come after Mrs. Jerald when the wheeling was good, it is to be considered that he employed the plaintiff to keep her until that time at the expense of the town, and that it was the duty of the overseers of the poor to take her away from the plaintiff’s when his contract expired ; and it is asked whether the plaintiff should have turned her out of doors. It appears the plaintiff was not at liberty to infer that he was employed toJseep this woman at the expense of the town, when he was informed of the extent of Mr. Ward’s authority, and both he and Mr. Wait refused to make any contract. When the year expired for which he contracted' to keep her, he might refuse to make any further supplies for her support, might have turned her out of doors, if he chose, or taken any other course, which he thought proper, as, he would, if any other person was in his house for whom he did not feel under obligation to provide. If she was an entire stranger to his family'and was in good health, (and it does not appear but that she was in her usual health, at this time) he would undoubtedly, have refused any longer to maintain her. But if she was connected with his family (and it is said that she was his mother in law,) he would probably keep her until she could be removed some where else, comfortably and without suffering any inconvenience arising from travelling at this season of the year. Any further support which he might have offered her would be upon the ground of charity or affection to her, but would not be on the ground of obligation, arising from any contract express or implied between him and the defendant. There was nothing therefore in the testimony of Mr. Stoddard which would justify the inference that there was any request, contract or undertaking on the part of the defendant, which would authorize a recover/by the plaintiff in this case. — 450 — The evidence offered as to the acknowledgements made by Mr. White, one of the overseers of the poor of the town of Londonderry was also properly rejected. It is at least doubtful whether the evidence of the admissions of an overseer of the poor as to a transaction past, can in any case be received when such person is a competent witness. In England the admission of rated inhabitants are received as the admissions of a party to the suit, but it was strongly intimated in the case of the King vs. the Inhabitants of Hardwick, 11 East. 578; that as the interest of the inhabitants was very trifling the party who offers the declaration, should first call on the person who made the admission, and unless he refused to testify, evidence of his declarations would be entitled to very little weight. A statute has been passed, making all inhabitants witnesses in settlement cases, 54 Geo. III. c. 170. Since the passing of that statute it has been intimated that the admissions or declarations of an inhabitant would not, now, be received. The question however has not been directly decided to my knowledge. It is not necessary that we should now decide that question, as upon other grounds we think the testimony was inadmissible. The acknowledgement of Mr. White was not the admission of any fact, or evidence of any fact, not a declaration of any thiiig done by him or either of the other overseers which would have the effect to make the town chargable. It was nothing more, than his opinion, that the physician’s bill was due from the town to the plaintiff. From the view which has already been taken, this opinion could not have been correct unless the town employed the physician or requested the plaintiff so to do. Moreover, if the physician was employed, his claim was directly against the town; the plaintiff by paying him did not thereby make the town his debtor. The opinion of any individual belonging to a town, whose interest and feelings might be adverse to theirs, that a sum of money was due from such town ought not to be received in any case, to charge them. So that if it should be considered (which is not decided in this case) that the declarations of the inhabitants of a town, can be received in evidence against them in a suit to which they are a party, and when the inhabit — 451 — ant whose declaration is offered is an admissible witness; yet the acknowledgment which was offered in this case, was not the admission of any fact or contract or in relation to any act of the overseers which, if proved, would have fixed any liabilities on them. The judgement of the County Court is therefore affirmed.