Brown v. Marden , 61 N.H. 15 ( 1881 )

It was no part of the defendants' duty to regulate the check-list. They had no power to place the plaintiff's name upon it, or to prevent its being entered. The sole duty of regulating the list was devolved by statute upon the supervisors of the town. G. L., c. 30. The supervisors properly refused to put the plaintiff's name in the list, for the reason that he had received assistance from the town within the preceding ninety days. But this disqualification the plaintiff could remove by tendering to the moderator, collector of taxes, or one of the selectmen, all reasonable expenses which the town had incurred by reason of such assistance within that period. G. L., c. 29, ss. 3, 4. The statute does not prescribe the mode by which the amount to be paid or tendered shall be determined. As it is no part of the duty of the moderator or collector of taxes to furnish assistance to persons standing in need of relief, they might be in no position to furnish information on that point. The same would be true of the selectmen, except when they are ex officio overseers of the poor. It might not be unreasonable to require them to ascertain the amount from the overseers. The statute seems to contemplate that one who has been aided by the town will have some knowledge, more or less accurate, as to the amount to be refunded, and will be able to determine the amount with such information as he may be able to obtain from the officers who furnished the relief. The right of the person relieved to refund to the town the amount expended for his relief, includes the corresponding duty on the part of the officer to whom payment is tendered to receive it. It being the duty of the selectmen to receive the money when offered, we think it must also be their duty to determine, when applied to, what amount of assistance was rendered by them acting as overseers of the poor, or if the assistance was rendered by the overseers, if they can reasonably ascertain the amount. The proceeding is necessarily of a summary character, admitting of little or no delay, with no opportunity for appeal, and ordinarily attended with no difficulty. If the amount exacted should prove excessive, a remedy for the grievance would perhaps be found in a suit against the town to recover back the excess.

If it was the duty of the defendants to give the plaintiff correct information, so far as they had or could reasonably obtain information, when he demanded to be informed of the amount of assistance furnished to him, it does not appear that they acted otherwise than in good faith and with reasonable care. They were not warrantors of the correctness of the information they gave. If the question of good faith or due care is material, they are not found to have been in any fault. It does not appear that their error was a result of bad faith or negligence. Penacook Savings Bank v. Hubbard,58 N.H. 167; Hooper v. Robinson, 98 U.S. 528.

The case of Ford v. Holden, 39 N.H. 143, is not in point. In that case the defendants, acting as selectmen, were charged with the duty of regulating the check-list, and wrongfully required the plaintiff to pay certain taxes which had been abated at his request, as a condition precedent to inserting his name in the check-list; and although they acted honestly, and paid the money over to the town treasurer before its repayment was demanded, yet they were held liable to repay it. The decision went upon the ground that the defendants had no authority to demand the taxes, or to make their payment a condition upon which the insertion of the plaintiff's name in the check-list was to depend; that they had by the exercise of their official power obtained money from the plaintiff, to which by law neither they as selectmen nor the town were entitled.

The defendants in this case exercised no official power to obtain money from the plaintiff, either as a condition precedent to inserting his name in the check-list, or otherwise. At his request, or upon his demand, they determined the amount expended for his relief, honestly for aught that appears, received the money tendered, and paid the same over to the town treasurer. The amount paid proves to have been excessive. For the excess, the plaintiff's remedy would seem to be by a suit against the town, if it was his money that was paid. The defendants acted as mere agents of the town in receiving the money, and the right of the town to retain the money cannot be tried in an action against the agent. Weeks v. Hill, 38 N.H. 199; Winkley v. Foye, 28 N.H. 513.

Exceptions overruled.

STANLEY, J., did not sit: the others concurred.