Steinberg v. Town of Eden

The opinion of the court was delivered by Steele, J. The question is whether the plaintiff comes within, the terms of the offer made by the town in their vote of December 8, 1863. The vote was “ To pay three hundred dollars to each volunteer that it is necessary to raise, to fill the quota of 300000 men of the last call of the president of the United States, for this town.” No question is made but the plaintiff was a volunteer, and a volunteer under the call for 300000 men, and under that call “ for this town.” So far he comes strictly within the terms of the vote. But the defendants claim that he was not of the number of volunteers whom it was “ necessary to raise to fill the quota,” and that in this respect he fails to bring himself within the benefit of the offer. He was the first man mustered in to the defendants’ credit after the vote. The officers of the town were notified of the plaintiff’s muster in to their credit six days before they mustered in the; [192] men. enlisted by themselves. They then mustered in Milton H. Brown and Joseph Bailey, and the defendants claim that these men or one of them should take the precedence of the plaintiff. These parties were mustered in January 26. The plaintiff was mustered in on the 16th day of the previous month, and the town were notified of it on the 20th day of the same month. Under this state of facts, we think it very clear that the plaintiff takes.the precedence of Brown and Bailey. He enlisted, procured himself to be mustered in, and the town to be notified of it, sis days before the muster in of either Brown or Bailey. When he was mustered in, the town confessedly stood charged with a deficiency of at least one man upon the records of the adjutant general. For the purposes of this case, it is not necessary to decide whether the town needed to raise more than one man to fill their quota. So long as it is admitted that it was necessary to raise one man, and the plaintiff was mustered in while that necessity existed and appeared upon the books of the adjutant general, and the town were notified of it before they'mustered in any one else, it is unnecessary for him to show that the town still needed more men. It is confessed they wanted one man, and the plaintiff supplied that want. It is entirely immaterial, whether the adjutant general • counted him on that deficiency, or applied him upon a subsequent call. The plaintiff.is not responsible for the adjutant general’s mode of keeping his books. It made no manner of difference with the standing of the town, which one of the soldiers’ names was counted on the excess. The object of these books was to show the standing of the town with the government. They did not profess to show the standing of the soldier with the town. The moment that the town were notified that the plaintiff had been mustered in to supply their acknowledged lack of one man under the call, the right of the plaintiff to demand and recover the promised three hundred dollars, was vested and perfect. No subsequent action of the federal, state or town authorities could prejudice that right. It is true the plaintiff made no trade with the selectmen. None was necessary. The offer was not limited to volunteers who should • contract with the selectmen. If the town had desired to affix such •,a limitation to their promise, they would have expressed it in their [193] vote. As tbe offer stood upon, tbe record,.it was general, and it was direct from tbe town to “ eacb volunteer necessary to fill tbeir quota.” Tbe plaintiff required no conference with tbe selectmen to bring bimself within all its terms. Nor does it alter tbe case, that tbe selectmen bad, before January 20, when they learned of tbe plaintiff’s muster in to tbeir credit, taken steps to fill tbeir quota, so long as they bad not filled it. Until tbe quota was filled tbe offer was open. Tbe selectmen bad enlisted men to fill it, but tbe men bad not been mustered in, and there was no certainty 'that tbe government would accept them, and until tbeir acceptance tbe quota would be outstanding against the town, precisely as if these men bad not enlisted. The preliminary enlistment', until tbe man is accepted by tbe government, is imperfect, and is available neither to diminish the quota of tbe town nor to make tbe town liable to pay a bounty. When tbe selectmen learned on tbe 20th of January that their quota was filled, they might, if they had chosen, have disposed of their chance to the credit of Brown and Bailey, which was in tbeir control, to some other town whose quota was not full. Tbe market for such property was in those ■days quick, and usually of an upward tendency. If, however, they did not choose to take any course to relieve themselves of these men, but, on the contrary, preferred to bold them and to perfect tbeir enlistment by a muster in to tbe credit of the town, they certainly ought not to expect to bold them at the plaintiff’s expense. Tbe selectmen took tbe course most prudent for tbe town. The excess furnished under this call went to reduce tbe quota under subsequent calls when bounties were much higher. Motives of patriotism as well as prudence, induced tbe different towns in tbe state to raise under this call an excess above tbeir quotas, amounting in all to over 2000 men. Of this excess the ■.town of Eden furnished 14. They probably did not accomplish so creditable a result entirely by accident. On the 23d day of January, three days after tbe selectmen bad notice of tbe plaintiff’s muster in to tbeir credit and before tbe other soldiers had been mustered in, the authorities of tbe state issued a circular to tbe selectmen of tbe different towns, appealing to them to raise .men in excess of their quotas, in the following language: “ It is [194] not to be expected that tbe large government bounties now offered, will be continued after tbe first of March. Sound policy would dictate to tbe towns to take advantage of tbeir present offer and raise men in anticipation of a future call. Tbe cessation of labor in any town merely for tbe reason that tbe present quota of tbe town :bas been filled, is but a selfish consideration. Let all tbe men be raised that can be obtained. . Tbe credit will stand against future calls, and tbe government, which it is our pride to uphold, will have tbe present benefit of tbe men where and when they are most needed.” Adj. Gen.’s Eeport, 1864, p. 10-14. If this appeal somewhat affected tbe conduct of tbe defendants’ selectmen, it is not at all to tbeir discredit. But so long as tbe plaintiff comes strictly and precisely within'tke terms of tbe offer contained in tbe vote of tbe town, and he actually was counted by tbe state authorities upon either that quota, or a subsequent quota when tbe town paid much higher bounties, it is difficult to perceive tbe ground in either law or conscience, upon which tbe town may now question bis right to tbe bounty of three hundred dollars. Whether or not it was incumbent upon the plaintiff, to establish all that appears in this case, in order to become entitled to a recovery, it is of course unnecessary to decide. Tbe judgment of tbe county court is affirmed.