Town of Pawlet v. Town of Sandgate

— 629 — The opinion of the court was delivered by Bennett, J. The fiYst question in this case relates to the form of action. The defendants claim, that it should have been a special action on the case, upon the statute, and that assumpsit cannot be sustained. The sixth section of the statute relating to the support and removal of paupers, upon which this action is based, does not prescribe the form of action. It simply declares, that the town making the disbursements may recover for them, by an action brought in the name of such town against the delinquent town. The general rule is, that, for money accruing due under the provisions of a statute, the action of assumpsit may be supported, unless another remedy is expressly given. In Bell v. Burrows, Bul. N. P. 129, it was held, that .general indebitatus assumpsit would lie to recover a sum of money awarded to be paid, by commissioners to divide common fields, under a private act of parliament. The case of Rann v. Green, Cowp. 474, was assumpsit, brought by the plaintiff to recover a sum which had been ordered to be paid to him as vicar of a certain parish, in pursuance of the provisions of a private act of Parliament. Lord Mansfield says, the statute was the only ground of action, and that without it there was no power to make the order; and where it was made, the law raised an assumpsit. There is no importance to the fact, that, in the case referred to, the amount of the claim had been liquidated by the order made under the statute. The right of action arose out of the statute. If the moneys accruing due under the provisions of a statute are um certain in amount, they must be liquidated on trial j and such fact is of no importance, as it respects the form of action. If the law raised a promise to pay a sum of money accruing under a private act, certainly it would under a public act. See Doug. 10, n, 2, The case of Brookline v. Westminster, 4 Vt. 224, is a full authority for this declaration, In that case there had been an order of court, upon the petition of the town of Brookline, against the town of Westminster, to pay a certain portion of the expense of building a bridge across what was called West River. The plaintiff town built the bridge, and then recovered in an action of assumpsit against Westminster, the sum in which they had been assessed. In that case the sum was liquidated on trial. Westminister had, under the statute, been assessed, not a specific sum, but only a given portion — 630 — of the whole expense. The action was assurnpsi.t in the case of Londonderry v. Windham, 2 Vt. 149. The first count alleged the sickness and expenses and notice correctly, but did not set out the order of removal; and the second count, which went for the expense of the order of removal and of the removal, omitted to allege any sickness to prevent a removal at the time the order was made. The declaration was. held insufficient, upon demurrer, for these causes; but there is no intimation, either by counsel or court, that assumpsit was not a proper form of action. So in the case of Essex v. Milton, 3 Vt. 17, the form of the action was assumpsit. The case of Danville v. Putney, 6 Vt. 512, was an action of assumpsit, to recover for the support of transient poor, under the 11th section of the statute. Judge Collamer, in giving the opinion of the court, says, in substance, that it is sufficient, upon general principles, to state all those facts which the statute renders necessary to create the liability, and thereupon raise the assumpsit, without setting up or expressly declaring upon the statute; — and he adds, that this is the usual course on the fourth section of the statute, — which answers to the sixth section of the Revised Statutes. Upon this ground, the first count, which was special, setting up what was necessary to create the. liability under the statute, was held sufficient. And in that case it may be said, that the 11th section provided, that the remedy might be “by an action for money laid out and expended.” Still ¡it was held, that this was not imperative, and that a special assumpsit might be maintained. The case of Middlebury v. Hubbardton, 1 D. Ch. 205, was under the 11th section, and the court simply held, ¡in that case, that a general indebitatus assumpsit will not lie for money laid out and expended, but that a case must be made, in ¡the declaration, within this section of the statute. The remark of ..Judge Chipman, that, under the fourth section, it must be a special .action on the case upon the statute, is extra-judicial. On the whole, we think the first count in the declaration is well adapted to the plaintiff’s case; and the motion in arrest was proper-sly overruled. The objection to the admission of parol evidence, to show the ■ sickness of the pauper, &c., is without foundation. Indeed, it has :been waived by the defendants’ counsel in argument. The charge of the court, that the plaintiffs were entitled to recov — 631 — er for all such bills, as they were legally bound to pay at the commencement of the suit, notwithstanding they had not then been paid, we think, was correct. By the sixth section of the statute, p. 102, the town of Sandgate was made liable to the town of Pawlet, to repay them all charges, occasioned in consequence of the inability of the pauper to be removed at the time of making the order, in maintaining and curing her, and in subsequently removing her to Sand-gate. So far as the town of Pawlet have made themselves liable, such liability is necessarily chargeable upon the town; and so far as individuals may have rendered services in maintaining and doctoring the pauper upon the credit of Pawlet, such individuals may well be considered as their agents; and the town may well sustain the action, though they have not yet paid the sums due such individuals. Westfield v. Southwick, 17 Pick. 68. The claim of James Leach is not to be distinguished from the other claims against the town of Pawlet. Let the suit in regard to the settlement of the pauper be determined as it might, the town of Pawlet was liable to Leach for a reasonable compensation ; and in one event, what should be a reasonable compensation should be determined by arbitrators; and, in the other event, by the amount which should be allowed the town in the suit against Sandgate. The fact, that, in this latter event, the town of Pawlet was not liable to pay Leach until after the recovery against Sandgate, can make no difference. It became a present liability upon the town, upon the rendition of the services by Leach, but to be discharged' in futuro. We think the plaintiffs were entitled to interest on their claims after the expiration of the fifteen days from the time the notice was given-to the defendants. At the expiration of such time the plaintiffs’ right of action was complete, and the defendants liable to a suit. In Brookline v. Westminster, 4 Vt. 225, interest was allowed on the plaintiffs’ claim, from the time of the demand; and no objection was made on this point of the charge. In Houghton et al. v. Hagar, Brayt. 133, the principle was adopted, that, in an action for goods sold and delivered, the court would direct interest to be cast from' the time of demand ; and there being no demand in the case, interest was allowed from the serving of the writ. The same principle' is adopted in McIlvaine v. Wilkins, 12 N. H. 474. In Arnott v. — 632 — Redfern, 3 Bing. 353, it is said, there are two principles, upon, which interest is given, — 1st, Where the intent of the parties, that interest should be paid, is to be collected from the terms or nature of the contract; — 2d, In cases in which the debt has been wrongfully detained from the creditor; and in Hillhouse v. Davis, 1 M. & S. 109, the principle stated is, that, although interest be not due ex contractu, a party may be entitled to damages to the amount of the interest, for any unreasonable delay in the payment of what is due. In the case now before us, the statute, requiring fifteen days notice to be given in writing of the plaintiffs’ claims is, in effect, a demand of payment at the expiration of that time; and if not then paid, the sum then due is wrongfully detained, and the law gives damages equal to the interest for such detention. There was no error in the county court, then, in telling the jury, that, if they found for the plaintiff, they should allow interest after the fifteen days. It was quite immaterial, whether the court called it interest, or damages for the detention of the sum due. We think, then, the defendants’ exceptions cannot prevail. As the plaintiffs have also excepted, it becomes our duty to examine their exceptions. It seems the plaintiffs claimed to recover for Dr. Edson’s bill, for services rendered in doctoring the pauper pending the appeal in relation to her settlement,under an agreement,that,if the pauper’s settlement should be decided to be in Sandgate, he should have a reasonable compensation ; but if found to be in Pawlet, he should have ■nothing. Wethink, that the plaintiffs should not be allowed to recover any thing for Edson’s bill. If the pauper was in need of his services, it was the duty of the town of Pawlet to see that they were had,— and that upon their own responsibility. To permit the town to make a sort of & gambling contract with Edson, so as, in one event, to screen them from any liability, and, in another, to lay the foundation for a recovery against the town of Sandgate, we think would be unwise and against sound policy. The town of Pawlet should be governed, in making expenditures, by the utmost fairness; and no temptation should be held out to them, to make ‘an expenditure for this pauper at the expense of Sandgate, which it was not incumbent upon them to incur without regard to the result of the suit involving the settlement of the pauper. The town of Sandgate is a stranger — 633 — to the transaction; and the liability imposed upon them is a statute liability; and if contracts like the present were sanctioned, it might tend to oppresive and reckless expenditures. The county court were correct in not allowing the plaintiff to recover for Dr. Smith’s bill. Before a town is liable to be sued, they are by the statute entitled to fifteen days’ notice, in writing, of “ all the charges and expenses” incurred in consequence of “the pauper’s inability to be removed.” As the town of Sandgate was neither party or privy to the expenditures for the support of the pauper, but the liability being imposed by statute, it is but reasonable, that the town should have notice of the specific expenditure; and we think the statute requires it. The town may well wish to examine into the claim, before deciding upon its reasonableness. As Smith’s bill was not named in the notice, as being included in Leach’s bill; the notice, as to that item, was insufficient. The plaintiffs have no reason to complain of the charge of the court in relation to Leach’s bill. Leach had agreed with Pierce, who was under contract with the town of Pawlet to support their poor, to keep the pauper in question at the rate of $2,50 per week, (provided there should be no extraordinary expenses,) in case her settlement should not be adjudged to be in Sandgate. The town should not be allowed to recover more for Leach, than what he would have been entitled to, had the pauper’s settlement been found not to have been in Sandgate. It was immaterial to Leach, whether the settlement of the pauper was in the one place, or the other; and his agreement to keep the pauper at the rate specified must be evidence of what he considered it worth. Besides, the town of Sandgate should not be compelled to pay any more, than what it would have reasonably cost the town of Pawlet, had she been one of their own poor. The contract, in that event, limited by its own terms the amount of compensation. The statute having given the town of Sandgate fifteen days to pay the bill, after notice of the expenditure, no interest should be allowed the plaintiff until a right of action accrued. There was no'contract, express, or implied, to pay interest, and no wrongful detention of the money, until the expiration of- the fifteen days. The result is, that neither party can succeed in their exceptions; and the judgment of the county court is affirmed.