Abbe v. Allen , 39 How. Pr. 481 ( 1869 )

Bacon, J.

Upon the case stated by the plaintiff in his complaint, and that proved on the trial, there can hardly be a pretence that a right to recover anything was shown.

The statement of the complaint is that the plaintiff made a contract with the defendant, to furnish these substitutes for his three sons, for which he was to pay the defendant $1,500 each, making $4,500 in all, ami was to receive the town, county and state bounties for the recruits as the equivalent for what he was thus to pay. The allegation is, that the defendant received all the bounties but refused to pay them over in full, but retained $100 of such bounties, and refused to pay it over to the plaintiff, and this is the sum he claims in his complaint to recover. The proof is, that after some negotiation between the parties, it was finally agreed that the substitutes were to be put in at. $1,500 each, the plaintiff" to be entitled to the bonds which the town and county had voted to issue in payment for .bounties, and which then amounted to $1,500 for each recruit, the result of the agreement being that the plaintiff, was to furnish the cash to the amount of the bonds and receive them as the equivalent.for his advance.

Ttie effect of the transaction was that “one hand should wash the other,” to use a common but expressive phrase, and the plaintiff would thus procure his substitutes without any expense to himself, and in the end, as the defendant expresses it, “would not be out anything.”

And this is precisely what w'as done, the defendant' procured the men, the plaintiff .furnished the bounty money, being $1,500 in all, and received the town and county bonds amounting to precisely the same sum. If the defendant got any compensation for his services it came from some other quarter, and the whole matter was closed apparently to the satisfaction of all parties. Neither of them then' evidently thought of—perhaps, were not aware of the resolution of the supervisors, to pay $25 to any person who should procure or enlist a volunteer after such volunteer should be received and mustered into the service. • Subsequently the defendant procured the necessary voucher and obtained $75 being $25 for each of these three recruits he had procured to be mustered in, and that is the money now claimed to be recovered in this action under the allegation that it was a part of the county money, to which the plaintiff was entitled under the agreement aforesaid.

It seemed to me on the trial, and does still, a most baseless claim on the part of the plaintiff". I assume there can be no doubt of the competency of the evidence called, out by the resolution of the board of supervisors.

There is no objection stated in any matter of form touching the proof of - the resolution, all that having been especially waived on-the trial. The only objection is to the competency of the evidence itself. But in the light of the claim set up to recover in this case, it is essentially important to ascertain what was the nature and character of the payment thus authorized by the supervisors.

Was it any part of the town and county bounties entering into the possible contemplation of the parties, when , they made their agreement in September, 1864, and carried it out in precise accordance with the terms and spirit of that agreement1? It is entirely clear to my mind that what the parties understood by “ bounties” was the sums which had been voted by the towns and the county, as bounties to be paid to enlisted and mustered men, as the price -for their service. These bounties were provided for by the issuing of town aitd county bonds, just as they were then issued, and as both parties understood, and, indeed, knew they had been, and to the precise amount of the sum advanced by the plaintiff, and as the equivalent of which he received the town and county bonds, at the time he furnished the money which enabled him to procure through the defendant, the substitute he sought. The language of the resolution is, that “the sum of $25 be paid to auy person for each volunteer enlisted by him within the county, after being received and mustered in and credited on the quota of Oneida county, or at any sub-district therein.”

• This is evidently not a “ bounty” in any etymological or legal sense of that term.

Both the counsel for the plaintiff and defendant, cite and adopt the definition of Webster, to wit, “ that a bounty is a premium offered or given to induce men to enlist into the. public service,” and this is a proper and intelligible definition, indicating very clearly that bounty is only applicable to the payment-made to the enlisted man, as the inducement for his service, and not a premium paid to the man through whose intervention, and by whose procurement the recruit is obtained and mustered.

It is precisely what the witness, Hawley, who was one of the supervisors who aided in passing the resolution, termed it “ hand money” intended for and paid to the man who procured the volunteer. The resolution shows on its face, and in language that cannot be mistaken or misunderstood, that the recruit had nothing to do with this money as a bounty or anything in'the nature of bounty; but that it. was the stipulated wages earned or supposed to be by another person, to wit, the one procuring the volunteer and causing him to be mustered in. This is what the defendant did in this case, as he states without contradiction, he tl picked out the three men, made out the papers, went to the provost marshal’s office, and got them all in,” by so doing he earned the hand money, and was entitled to retain it, and the plaintiff is in no manner entitled to re-claim it.

I think the judgment should be affirmed.