Hills v. Town of Marlboro

The opinion of the court was delivered by Peck, J. The plaintiff seeks to recover a bounty of $500. of the town for enlisting and being mustered into the United States service to the credit of the defendant town on its quota. It is not denied but that the town became bound to pay the plaintiff a bounty of $300., but it is insisted by the defence that that is the extent of the liability [651] incurred by the town. It is also insisted by the defendant’s counsel that there is such a variance between' the vote of the town at the two meetings, one of December 5th, 1863, and the other of January 2d, 1864, and the declaration, that the plaintiff cannot recover at all on this declaration, and that there is error in the ruling of the county court in reference to this question of variance. The particulars in which it is insisted the declaration varies from the record of the votes introduced by the plaintiff, are such as in no way affect the result of the case ; but still if there is error in this respect, apparent upon the bill of exceptions, the defendant has the right to have it corrected in this court. But, in such case, in order to entitle the party to raise such question of variance, it must appear by the ease that the question was raised in the county court, and exception taken to the decision of that court upon the question. It appears that the case was tried by the court; that at the commencement of the trial the plaintiff introduced the records of the two votes in question. The case states that, “ the defendant objected to them on the ground that by reason of variance, they did not support the averments of the declaration; the court received them subject to the objection, pro forma, to which the defendant excepted.” Nothing appears showing that any particular ground of variance was suggested by counsel. This evidence being a written instrument or document, it was within the discz-etion of the county court to receive the evidence, for the time being, subject to the objection, reserving to the objecting party, at some future stage of the trial, to point out his objection, if he sees fit, and have the question passed upon. This is often done to facilitate the trial, instead of passing upon the admissibility of each paper separately; especially where the objection is only on the ground of variance, in general terms, and the trial is by the court. Such ruling, under such a general objection, is not regarded as a decision upon the question of variance. Its meaning and effect is simply to prevent the admission of the evidence operating as a waiver of the right to raise the objection by pointing out, in the course of the trial, the variance relied on. The admission of the paper, subject to the objection, imports that the court has not decided upon the question, but reserved it to some future stage in the trial if [652] the objecting counsel see fit to specify the objection and ask a ruling upon it. The practice in the county court is to require counsel to specify particularly in what the variance consists, before passing upon the question. It is no part of the duty of the court, under such general objection, to hunt for the particulars in which a variance consists. We do not say that this court would not entertain the question if it appeared that the county eourt allowed such general objection, and made a final decision upon the question, and regularly allowed exception to such ruling. But such is not this case. The most that can be said in this case is, that it appears that in the outset of the trial, the eourt reserved to the defendant’s counsel the privilege of.raising a question of variance, but he not having availed himself of it, his contemplated objection was waived, or rather was never made or decided. The reason for this is obvious. This case is a strong illustration of the propriety of such a rule. Had the objection, intended to be relied on, been made and pointed out to the court in the subsequent stage of the trial, as the ruling of the court contemplated, the court undoubtedly would have allowed an amendment of the declaration on trial if necessary to obviate the objection. It would be exceedingly unjust to allow this objection to be sprung upon the party for the first time in this court, when, if made in the county court, it might have been obviated, as it probably would have been, without delaying the trial. This question of variance cannot be raised in this court upon this bill of exceptions. It is insisted in defence, that as the selectmen at the time they enlisted the plaintiff, were not authorized by the town to pay more than $300. bounty. The contract to pay the plaintiff three hundred dollars, and as much more as they should pay to any one who should enlist to fill that quota, is binding only to the extent of $300. The court found, on the subject of the contract, that when the plaintiff enlisted December 9th, 1863, under an agreement that the town should pay him three hundred dollars bounty under the vote of December 5th, 1863, and if the town at a subsequent meeting, then in contemplation, should vote to pay more, then the plaintiff should be paid as much as should be paid to any one who should enlist to fill that quota. The court have found, as matter of fact, that [653] January 2d, 1864, the town, by vote, added $200. additional bounty to soldiers to fill that call, and that after that vete, the selectmen enlisted recruits to fill the quota at a bounty of $500. each ; that they, together with the plaintiff, were mustered in subsequent to the vote of January 2d, 1864, by Winchester, who negotiated the contract with the plaintiff, and Hale, another of the selectmen. As the selectmen, when they caused the plaintiff to be mustered in, had authority to pay a bounty of $500., and caused him to be mustered in, knowing that the plaintiff claimed the contract was to pay him that sum, to which it does not appear they made any objection, the town is bound to pay the $500., unless one or the other of the further objections, urged by the defendant’s counsel, prevails. It is insisted that as Hale did not know when the plaintiff was mustered in, that Winchester had agreed to pay him more than $300, the town is not bound beyond $300. But the case of Tarbell v. Plymouth, cited in argument, is an authority to show that the mustering in of the plaintiff was a ratification of the contract for $500., if any ratification was necessary. It is true that in that case the selectmen were authorized, when the contract was .made, to pay the larger sum. In this case they were authorized to pay but $300. when the plaintiff enlisted, and had authority to pay $500. when they caused him to be mustered in, which was the final consummation of the contract which entitled him to the bounty. In one respect this case is stronger in favor of the plaintiff than Tarbell v. Plymouth, 39 Vt. 429, for Hale knew when he and Winchester caused the plaintiff to be mustered in, that he claimed the contract to be for $500. That was sufficient, with the other facts, to put Hale on inquiry as to what the contract was. We do not say that any ratification of the original contract was necessary. But it is insisted that the vote of January 2d, 1864, cannot be construed as giving the selectmen authority to pay to recruits $200. additional bounty, and that the court erred in receiving parol evidence to show that such was the meaning of the vote. The case states that both parties introduced parol evidence from which the court find the following facts: Among the facts found is this “ the court find, as matter of fact, and hold that by said vote of January 2d, 1864, it was intended to [654] authorize the payment of $200. to each volunteer in addition to the $300. authorized by the said vote of December 5th, 1863, and that said selectmen so understood it and acted upon it in making enlistment contracts and paying bounties, after said first above named vote was passed.” It docs not appear that any objection was made to the introduction of parol evidence, nor which party first introduced such evidence to explain the vote. The rule that parol evidence is not admissible to explain writings, may be waived. If a party allows parol evidence to come in for such purpose, without objection, and submits his case upon it, he must abide the event of the issue ; it is too late to object to the character of the evidence after the issue is formed against him, at least it presents no error that this court can correct. Judgment affirmed.