Town of Grafton v. Follansbee

This is an action on the part of the town of Grafton, to recover a sum of money alleged to have *452been received by the defendant while collector of the town, and in the discharge of his office as such, for the town’s use.

A witness introduced by the plaintiffs to substantiate their claim is James M. Kilton, to whose competency objection is taken, upon the ground that while he was the treasurer of the town in June 1842, the defendant settled with him as such,-and that through mistake, the witness in his office of treasurer gave the defendant a receipt for $216.34 more than the sum which he had actually paid in, or accounted for as collector; that that is the money for the recovery of which this action is brought, and that therefore the witness has an interest in the event of the suit.

But it is not easy to establish such a conclusion. If the town were to bring an action against the witness alleging his default as treasurer for this sum of money, it would be a clear defence on his part to show that he had not received it, and a judgment in favor of the defendant in the present action could not possibly be set up in any form to prevent or estop such a defence from being made in the case supposed.

The question that is raised appears to be settled by the application of the familiar and well established rule, which admits the testimony of agents concerning acts done by them in the prosecution of their agency, although its direct tendency may be to exonerate themselves. The doctrine is stated in Greenleaf’s Law of Evidence, sec. 416, and is illustrated by numerous authorities which are there cited. Among those which seem apposite to the present case, is that of Barker v. M’Crae, 3 Gamp. 144, which was an action of a shop-keeper to recover a sum of money delivered by one Ash a carrier, to the defendant, through mistake. The carrier was called as a witness on the part of the plaintiff, and it was objected that he was interested. He was prima facie liable himself, and he must repay the *453money to the plaintiff, unless by his evidence he could fix the defendant. Lord Ellenborough held that he was a witness from necessity, and might be examined without a release. It might have been added, perhaps, that a judgment in favor of the defendant in that case would not have estopped the witness, Ash, in an action by the tradesman for not delivering the money, from showing that he actually did deliver it. The better reason for charging him with having an interest in the suit was, that upon a recovery by the plaintiff against the defendant, and.a satisfaction of the judgment, no possible claim could exist against the witness at the plaintiff’s suit. But as has been remarked, it was a case in which the tendency of such a judgment to exonerate the witness, is not considered in law a sufficient objection to his competency to testify. Phelps v. Sinclair, 2 N. H. 554.

Eor this reason it becomes unnecessary to inquire into the effect of the proceedings of the town with a view to releasing the witness from all claim founded upon his supposed liabilities, except to remark'that these proceedings have the effect of adopting the suit commenced in the name of the town, and of releasing him from all liability in respect to costs arising from it.

Its effect is also to settle a question that arose upon the demand, supposed to be a necessary preliminary to bringing the action, since it ratifies the demand made by Kilton.

That individual had no express authority to make such a demand, nor any authority implied in his office of treasurer, whose duties are simply to receive money and to disburse it upon the proper orders. But the payment of the money to him by the defendant, would have been a sufficient discharge from his debt to the town, and this was well known and not questioned by the defendant at the time. The town, by adopting the action founded upon that demand, ratified the demand also. The case comes within the principles of Payne v. Smith, 12 N. H. 34, and *454of Ham v. Boody, Rockingham, Dec. term, 1844. “Where a demand is made by an attorney, the party has a right to require reasonable evidence of the authority of the individual to make it. But if no exception is taken at the time, then a subsequent, commencement of a suit by the party in whose behalf it was made, claiming under such a demand, is a ratification of the act, and primd fade proof that it was made with his authority.”

Judgment on the verdict.