Opinion
Argued October 4, 1871
Decided January term, 1872
Wm. Roe for the appellant.
C. Mason for the respondent.
It is clear from the evidence that the inhabitants of the town of Wolcott intended to raise the money and pay a bounty of $600 to every soldier who should be enlisted and credited toward its quota, under the call of the government for men to serve in the army. There was no distinction, whether he had been enlisted or should thereafter be enlisted. The only condition was that the enlisted man should be credited on account of the quota assigned to the town under a certain call. McMahon was such a man. The town was legally authorized to grant the bounty. The bounty became thereby his right, and the equivalent of property. The point that there was no consideration, and no obligation, therefore, resting on the town to pay the bounty to McMahon, for the reason that he had enlisted and been mustered into the service before the special town meeting had been held, is as destitute of legal merit as it is of morality.
The defendant, by local influence of himself, or his friends, of which it appears by the evidence that he boasted, or by misrepresenting his right to it, and imposing on the credulity of the supervisor, who was charged with the duty of delivering the town bonds, succeeded in diverting to his own pocket the bounty which belonged to McMahon, and to which he had no just claim of ownership or title.
Possibly McMahon, or his assignees, might have compelled the issue of a town bond, or the payment of the money, by a proceeding against the town, or he might have maintained an action against the supervisor, who, without any evidence of the defendant's authority to receive it, voluntarily delivered his bounty to the defendant. McMahon, or his assignee, had his election to pursue the defendant, rather than such other more difficult remedies, where he would be met by other principles of law, and where the defence might be favored if the agents of the town acted with any prudence or good faith in delivering the bounty. As to the defendant, it is plain that he was a wrong-doer, and can have no pretence of good faith. His attempt at a defence is not that he has any title, but that the plaintiff has none. In this respect, he is in error. The enlistment of McMahon must be deemed to have been at the request of the town, to whose quota he was credited; or the town ratified and accepted the credit given and certified by the mustering officer. This constituted a sufficient consideration for a promise to pay for it. The case is within that of Decker v. Matthews (2 Kernan's R., 313). The defendant got possession wrongfully of the property of another.
The defendant's counsel supposes that the cases of Patrick v. Metcalf ( 37 N.Y., 332), and Butterworth v. Gould (41 id., 450), are in point to save him from liability. The difference is that the defendants in those cases received the money under claim of right. Here there can be no such claim. The bounty was not payable to those who had obtained a substitute, but to an enlisted man. The defendant claimed as having succeeded to McMahon's right. Not that he had any right of his own otherwise.
The order setting aside the nonsuit is correct, and should be affirmed with costs.
All concur.
Order affirmed and judgment absolute against defendant, and with costs.