Hunkins v. Town of Johnson

[136] The opinion of the court was delivered by Barrett, J. It appeared, and it was conceded by plaintiff’s counsel, that the plaintiff was in fact mustered in March 15th, 1864. By the terms of the vote, he could not be entitled to claim the. bounty till he had been mustered in. So, in this respect, the dating back that event to the 5th of January on the muster-in roll, could not affect his right prior to the fact of muster-in to claim and have the bounty. Prior to that, the provision made by the vote of the town had been exhausted in paying men who had been mustered in and filled the quota provided for in the vote. In order to entitle a party to enforce an open offer, he must show that he has brought himself within the legal effect of such offer. In this case it was limited to ten men. Of course it would be exhausted by the ten men who should first accept and comply with its terms. The plaintiff failed, through no fault of the town, to be one of that number. He cannot maintain his action on that ground. There is no occasion to discuss the question of the validity of that vote, that question having been settled in the case of Mudgett v. Johnson, 42 Vt. 423. Nor is there occasion to discuss any question of construction, for the limit and application of the vote are obvious on its face. In this respect the question is, whether plaintiff comes within the operation of it, by reason of having accepted the offer made by such vote. The other ground of claim made in behalf of the plaintiff, cannot be maintained, for the record states that there was no evidence tending to show that either of the selectmen named by the plaintiff was authorized by the other selectmen to make any promises, or give any assurances, in behalf of the town, &c. This is the ground established by the evidence in Mudgett v. Johnson, on which, in that case, the plaintiff prevailed. There is nothing-shown in this case from which any legitimate inference could be drawn, that any other of the selectmen were consenting to, or were cognizant of, what was being done by Merriam in respect to the enlistment of the plaintiff. This is matter of fact, necessary to be established by proof. The same is true as to Merriam’s successor, Mr. Riddle. [137] The case lacks essential elements in order to bind the town by estoppel. The town could no more be subjected to liability in this way, by virtue of what Merriam alone undertook to do, than by the proper vigor of a contract in that behalf, negotiated by him alone, in his office and character as selectman. Judgment reversed and cause remanded.