Underhill v. Town of Washington

[771] The opinion of the court was delivered by Redeield, J. The only question reserved in this case is as to the sufficiency of the notice to the selectmen of the defendant town, by the plaintiff, of his injury upon the highway in question. The act of 1870, p. 88, provides that “ no action shall hereafter be maintained in any court in this state, «fee., unless notice shall first have been given in writing, to one or more of the selectmen of the town, by the person injured, stating the time when, and the place where, such injury was received.” This notice was in writing, and within the required time, but omitted, altogether, any statement of the place where the injury was received. The court below held, and we think very properly, that the written notice was insufficient, and not a compliance with the statute. But the court, against the defendant’s objection, admitted parol evidence, to prove that the selectman, at the time the written notice was delivered to him, was informed by the plaintiff, of the place where the injury was received, and that, after the thirty days expired, the selectmen of the defendant town, by appointment, met the plaintiff, and negotiation was had in regard to a settlement, but none was effected. I. It is claimed by the plaintiff, that the defect in the written notice was, and might lawfully be, supplied by parol evidence. The statute of J.855 did not require the notice to be in writing, nor to specify the “place where” the injury occurred. Under that statute, the fact of notice was often in dispute, and the plaintiff was sometimes charged with “ changing the venue” of his injury after litigation began. The act of 1870 was evidently intended to place the fact of notice beyond dispute, and to require the time and place of injury to be made specific. The statute is mandatory in form, and declares that no action (in this class of cases) shall hereafter be maintained in any court in this state, unless this preliminary act shall be done within the time specified. The place where the injury occurred, is a cardinal and special requirement of the statute; and if this requirement can be supplied by parol evidence, then may all, and the statute be annulled and utterly disregarded. We think parol evidence not admissible to supply a legal requirement of the written notice. [772] II. It is claimed that the selectmen having actual notice from the plaintiff of the place where the injury occurred, by attempting to negotiate a settlement, waived the written notice required by statute. But if the selectmen had authority to- waive a statute provision for the benefit of the town, and thus create a right of action against the town which, under the statute, had never accrued, there is nothing in this case- showing any declaration or purpose to waive the requirement of the statute. Nor is it claimed that the plaintiff -was deceived or misled-by any act of the selectmen. Whether the selectman knew that a written notice was required, or whether he believed or disbelieved the sufficiency of the notice, is altogether a matter of conjecture. He was not bound to advertise the insufficiency of the notice, if he had discovered it. The statute of frauds, in its .language, has strong analogy. Like this statute, it does not attempt to affect the contractor cause of action, but denies the remedy, “ unless the promise, <fcc., shall be in writing.” This statute denies the remedy in any court, un-. less the preliminary act, viz., a notice in writing, of a specified character, shall be uiven ; and we see no reason why this statute should not be substantially complied with, as has always been required in case of the statute of frauds. The result is that the judgment of the county pourt is reversed, and cause: remanded.