Welch v. Town of Sugar Creek

Colb, J. "We really can see no force in tbe objection which — 624 — was taken to the question asked tbe witness Jacobson as to the time he was mustered into the service of the United States. The objection was, that this was not the best evidence of the time when he was mustered in, and that the muster rolls should have been produced, which would show the time. The plaintiff had already put in evidence the certificate of the adjutant general of the state, which purported to show when the witness, Gates, Parrish, and the plaintiff were re-enlisted. But it is very plain that the plaintiff was not bound by the dates in this certificate. As is well observed in the brief of the counsel for the plaintiff, the record from the adjutant general’s office is not a record of a contract; it was not signed by the soldier, and there is no reason why he should be bound by the dates there contained. Even in contracts of the most solemn kind, where the date of their execution becomes material, it may be proven by parol, “ not merely to supply an omission where the paper itself is without date, but in opposition to the date, where it contains one. The time when a contract is executed is no more a part of the contract than the place where it is executed.” SeldeN, J., in Draper v. Snow, 20 N. Y., 331, 333; Breck v. Cole, 4 Sandf. (S. C.), 79. And for still stronger reasons should the soldier be permitted to show, even by parol evidence, when he was actually mustered into the service, whenever that fact becomes material. Eor, as we understand, the practice of the general government was not always to muster the soldier in on the same day he signed the enlistment paper. Erom necessity some days would frequently intervene before the mustering officer could have the proper medical examination made. We therefore think there was no error in allowing the witness to testify to the time he was mustered into the service. The next error relied on by the defendant is, the exclusion of the question asked the witness Kinney. Eor the purpose of showing that Parrish had no claim for bounty against the defendant, this witness was asked whether he heard “ Parrish state — 625 — last winter anything about 'his claim — whether he had any against the town, or otherwise ?” For the most obvious reasons this question, in the form in which it was put, was clearly objectionable. The plaintiff had already shown a written assignment by Parrish to him of the former’s claim against the town, which assignment bore date December 20, 1869. Nov»' declarations made by Parrish after he had assigned his claim, could not be admitted to affect the rights of his assignee. The question called for declarations made “last winter,” that is, declarations which might have been made after the assignment. The cases of Bates v. Ablemann, 13 Wis., 644; Bogert v. Phelps, 14 id., 88; and Grant v. Lewis, id., 487, show that there was no error in this ruling of the court. The nest objection tahen by the defendant is, the refusal of the court to dismiss the complaint on its motion, for the reason . that the testimony showed that the plaintiff was not the sole party in interest. The court had previously held that though the assignment by Gates, Parrish and Jacobson to the plaintiff of their claim against the town was in writing, and fair and absolute on its face, still the defendant might impeach it by showing that it was merely colorable and not real, but assigned for collection only; and the defendant went into the question of the bona fides of the assignment. The assignors were interrogated very fully as to the consideration and circumstances of the assignment. And, as it appears to us, it is idle to claim that there was not testimony to go to the jury upon the question whether the assignors had not made a complete and full transfer of their interest to the plaintiff, and that he was entitled to the full proceeds of the claim when collected. If there was sufficient evidence to go to the jury upon that question, then it is very manifest the court properly refused to dismiss the complaint on the ground that the plaintiff was not the sole party in interest. And it may be added in this connection, that the court instructed the jury, in reference to this point, to the effect that while the assignment was absolute in its terms, and — 626 — fair upon its face, and was sufficient in law to convey tbe entire interest of tbe assignors in tbe claims against the town, still, if these claims were assigned to tbe plaintiff merely for tbe purpose of collection, with tbe understanding that tbe plaintiff was to collect them and account to tbe original owners for tbe, proceeds, then tbe plaintiff was not tbe real party in interest, and bad no right to sue and recover on them in bis own name. This was submitting tbe question upon tbe evidence to tbe jury, whether tbe plaintiff was tbe real owner of those claims, entitled to sue in his own name upon them, and to receive and control tbe proceeds when collected. And we think this was all tbe defendant could require under tbe circumstances. This remark, too, will dispose of tbe objections taken to tbe refusal of tbe court to give tbe third and fourth special instructions asked on tbe part of tbe defendant. For tbe jury were told that tbe plaintiff could not recover unless, upon tbe collection of tbe claims, tbe proceeds would belong to him and could be appropriated to bis own use. At tbe request of tbe defendant tbe court also instructed tbe jury, that before they could find for tbe plaintiff, they must be satisfied that at tbe time tbe plaintiff, Grates, Jacobson and Parrish enlisted and were mustered into tbe military service of tbe United States, and became credited to tbe town of Sugar Creek, they bad knowledge that said town had offered a bounty, and that they enlisted, were mustered in and became credited to ,said town upon its quota with an intent or with a view to obtain such bounty; that tbe bounty, at least, must have been one of ■tbe objects for such enlistment and credit to the town. Tbe court refused to give tbe second instruction asked on tbe •part of tbe defendant. It is admitted in tbe brief of tbe counsel for tbe defendant, that this request is clumsily drawn; and it is so. Tbe meaning is not very clearly expressed, whatever iit may be. H we understand tbe instruction correctly, it was, a direction to tbe jury that a volunteer who bad enlisted and 'become credited to a town in consideration of a bounty offered — 627 — by tbe town, must give notice to tbe town authorities that be bad so enlisted and become credited on its quota, and that be must also accompany sucb notice with evidence sufficient to warrant tbe officers in paying him tbe bounty. But it was not possible for tbe volunteer to always accompany his notice with legal proof of tbe fact of bis enlistment. If that proof was furnished before tbe officers paid tbe bounty, tbe town was amply protected. But tbe court did give tbe following instructions at tbe request of tbe plaintiff, which, we think, contain tbe law applicable to tbe facts disclosed by tbe evidence: “ In case any person or persons did so enlist, become mustered into tbe service of tbe United States, and accredited to tbe town of Sugar Creek, and did give notice thereof to the proper town officer or officers, with knowledge of and with tbe intention of obtaining tbe offered bounty of $200, sucb persons would become entitled to said bounty in tbe order of time in which they severally gave sucb credits to tbe town and gave notice thereof to tbe town officers; unless tbe town bad already filled its quota of twelve men by securing sucb men to be enlisted, mustered into service and credited to tbe town.” “ It was not necessary that tbe plaintiff, or others who bad procured themselves to be credited to tbe town of Sugar Creek as before stated, should give tbe said notice to tbe town officers in writing or in any particular form of words, but simply that they should inform tbe town officers, either by words or in writing, of tbe fact of tbe enlistment and credit to tbe town, and that they claimed the offered bounty. After such notice was given, tbe town officers were bound to inquire as to tbe facts, and tbe town became liable to pay tbe offered bounty, if tbe facts were true as stated.” Tbe general charge of tbe court upon tbe question of assignment of tbe claims to tbe plaintiff, is fully sustained by tbe case of Cummings v. Morris, 25 N. Y., 625, and we think was substantially correct This disposes of all tbe exceptions relied on for a reversal of tbe judgment. — 628 — By the Court.— Tbe judgment of tbe circuit court is affirmed. Lyoít, J., took no part in tbe decision of tbis cause, tbe plaintiff baying been a member of bis regiment when tbe cause of action arose, and it appearing probable that plaintiff, and others similarly situated, consulted with him as to their right to a town bounty.