Samuel Worden versus The Inhabitants of Leyden.
M. agreed with the overseers of the poor to support a state pauper, in consideration of being paid the money which the town should receive from the Commonwealth for the pauper’s support. The pauper being dissatisfied with his treatment at M.’s, went away to the house of the plaintiff, who gave notice to the overseers to remove him. One of the overseers (there being three) told the plaintiff it was his duty to send the pauper back to M.’s, and that he should be paid nothing for the pauper’s support; another subsequently told the plaintiff he would inquire into the pauper’s complaint against M., and that he would pay the plaintiff for keeping the pauper until he should be removed ; the third did not make any promise. The pauper was afterwards removed to M.’s, but the next day he went again to the plaintiff’s without M.’s knowledge ; the plaintiff sent him to one of the overseers, who told him to go back to M.’s, but the pauper objecting, and it being late in the afternoon and stormy, the overseer told him he might return to the plaintiff’s for the night, but that he must go back to M.’s in the morning. The pauper returned to the plaintiff’s accordingly, and remained there a long time. The town received of the Commonwealth 90 cents a week for the whole time that the pauper was at the plaintiff’s, and the money was paid over to M. The overseers sent clothes to the pauper while he was staying with the plaintiff, but M. paid for them, in pursuance of his agreement at the time when they were purchased ; the plaintiff however was ignorant of this agreement. It was held, that whether the contract of M. with the overseers was valid or not as between the parties to it, the plaintiff could not take advantage of any defect in it ; that there was no sufficient evidence of any contract, express or implied, between the town and the plaintiff for the support of the pauper, either for the whole time the pauper was with the plaintiff, or for one night; and that the money received by the town from the Commonwealth, was not received to the use of the plaintiff.
If a pauper is ill treated or insufficiently provided for by an individual who has agreed with the town to support him, another individual will not have a right to support him without notice to the town, so that it may have an opportunity to reform the abuse or make other provision for the pauper.
Assumpsit for the support of Arnold Clark and Tacy his wife, from November 16th, 1826, to March 23d, 1827. One count in the declaration was for money bad and received.
At the trial in the Common Pleas, before Cummins J., it appeared that Clark and his wife were State paupers, and that they had resided in Leyden ever since 1824. The overseers of the poor of that town had received, for the benefit of the town, $ 1-80 a week from the treasury of the Commonwealth, for the support of Clark and his wife as State paupers, for the whole of the time covered by the plaintiff’s declaration. The paupers were at the plaintiff’s house and supported by him *26from the 16th of November to the 23d of March, and he gave notice to the overseers to remove them, under the circumstances hereafter mentioned.
It was in evidence on the part of the defendants, that in April 1825 Elisha Chapin was chosen sole overseer of the poor of Leyden, and that at the same meeting it was voted that the overseer be authorized to make any contract he shall deem best for the good of the town, for the support of town and State paupers. Chapin made a contract with George Mowry for the support of Clark and his wife, dated May 14th, 1825, in the form of a bond given by Mowry as principal and Chapin as his surety, to Chapin as overseer or his successors.
The condition was, that Mowry and Chapin should support the paupers during their lives ; and the bond contained a clause (since obliterated) whereby “ the overseers agree that Mowry and Chapin shall have whatever the State may allow for the support of Arnold and his wife.” In April 1826, Chapin, Mowry, and H. Newcomb were chosen overseers. Mowry, with the approbation of Chapin and Newcomb, supported the paupers until the time when they went to the plaintiff’s house. The plaintiff knew that Mowry had been supporting them until that time. The money received by the town from the Commonwealth, was paid over to Mowry. The plaintiff called upon Chapin a few days after the paupers left Mowry’s, and requested him to take them away. Chapin told him he would inquire into the alleged grounds of complaint made by the paupers against Mowry, and that he would pay the plaintiff for keeping them until they should be removed by the overseers. Mowry, upon being applied to by the plaintiff a day or two before the conversation with Chapin, told the plaintiff it was his duty to send the paupers back, and that nothing should be paid by himself or the town for their support. Newcomb, upon being applied to by the plaintiff, did not promise to pay him any thing for their support.
About six weeks after the paupers first went to the plaintiff’s, they were removed by the overseers to Mowry’s. They returned the next day to the plaintiff’s without the knowledge or consent of Mowry. The plaintiff told them they must go back to Mowry’s, but they refusing, he told them they must go to *27Newcomb’s, who would provide for them. They accordingly went to Newcomb’s, who told them they must go back to Mowry’s, but they remonstrating against this, as it was stormy and late in the afternoon, he said he would permit them to go to the plaintiff’s for the night, but that they must return in the morning to Mowry’s. Newcomb testified that he made them no promise that the plaintiff should be paid. They then went to the plaintiff’s, and were supported by him at his house, until the time of their final removal on March 23d, 1827. While they were at the plaintiff’s, the overseers provided certain articles of clothing, which were sent to'them at the plaintiff’s house, and which were afterwards paid for by Mowry, who at the time of the purchase agreed to pay for them ; but the plaintiff bad no knowledge of this agreement.
The plaintiff contended, 1st, that he was entitled to recover, because the paupers had been in fact supported by him and no one else, and that the overseers having certified to the legislature that they had expended 90 cents a week for the support of each of the paupers during the time covered by the plaintiff’s demand, and having received that sum from the Commonwealth, the defendants were concluded from denying their liability in this action, or that at least these facts were evidence of a contract between the defendants and the plaintiff:—
2. That there was sufficient evidence to go to the jury, of a promise, express or implied, of the overseers to pay the plaintiff: —
3. That the neglect of the overseers to remove the paupers after due notice that the plaintiff was supporting them, one of the overseers promising that he should be paid, and another not expressly objecting thereto, was sufficient to make out the issue on the part of the plaintiff: —
4. That the fact that there was a contract with another person for the support of the paupers (admitting the contract to be valid) was immaterial as between these parties : —
5. That the bond before mentioned was void or voidable, or at least ineffectual after the first year, from various considerations arising from the face of it or from the facts before stated. And in order to show the bond to be void or fraudulent upon *28the Commonwealth, the plaintiff offered evidence to prove, that at the time when it was entered into, and until the paupers went to the plaintiff’s, the labor of the paupers was adequate to their support; but the evidence offered was rejected by the judge : —
6. That when Newcomb sent the paupers to the plaintiff’s to stay over night, the town was thereby rendered liable until they were removed, or at least for the night: —
7. That the count for money had and received was supported by the facts contained in the first ground of the exception.
But the judge held that the receipt of the money from the Commonwealth, under the circumstances, did not render the defendants liable in this action ; that it was immaterial to the present action, whether the bond was binding or not as between the parties to it, provided that Mowry, in pursuance of the condition, actually supported the paupers, and that if they voluntarily left him without his consent and lived with the plaintiff, the plaintiff was not entitled to recover of the town for their support, notwithstanding the notice that they were in his family, and the request to the overseers to remove them, and notwithstanding the overseers received 90 cents a week for the support of each of them while they were in fact supported by the plaintiff, and paid over the money to Mowry, after notice from the plaintiff that he had so supported them ; that there was not evidence sufficient to go to the jury to prove a promise, express or implied, on the part of the defendants ; and that the action could not be supported for any part of the time embraced by the declaration.
The plaintiff offered evidence tending to prove that the paupers left Mowry’s on account of his ill-treating and insufficiently providing for them, but the judge ruled that the plaintiff was not entitled to recover on this ground, unless the paupers were compelled to leave Mowry in consequence of personal violence towards them, or of his so insufficiently providing for their support as to render it unsafe and improper for them longer to remain under his care ; and the facts not bringing the case within the rules so laid down, the judge ordered a nonsuit.
*29To the foregoing directions and opinions the plaintiff filed exceptions.
Wells, for the plaintiff.
Bates and Grennell, for the defendants.
Sept. 30th.
Oct. 2d.
Per Curiam.
The plaintiff claims to recover in this action, on the ground that the paupers were supported by him, and. that it was certified by the overseers to the Commonwealth, that they were supported by the town and the sum of 90 cents a week for each of them was received from the Commonwealth ; so that the defendants are concluded from denying their liability. This depends on the questions, whether the plaintiff’s interposition was right, and whether it was recognized by the town, and whether the money was received to his use. The Court think, on the whole - matter, that the plaintiff is not entitled to recover on this ground.
The Court are of opinion that there was not sufficient evidence of a contract, express or implied, between the parties, to go to the jury, and that a verdict for the plaintiff upon the facts in the case, would have been a verdict against evidence.
Whether the contract between Chapin and Mowry could be established as between them, is immaterial. The question is, whether the town had made provision for the maintenance of the paupers ; and we think it had ; and though this contract might be difficult to support as between the parties, the Court lay that question out of the case ; for if the parties do not choose to take advantage of its insufficiency, and if in point of fact Mowry did make provision for the paupers in pursuance of his contract with the town, the plaintiff, who is a stranger, cannot dispute the validity of such contract.
The Court perceive no evidence of a conspiracy or intention to defraud the Commonwealth.
The supposed contract for a night’s lodging of the paupers, is not proved. Newcomb, in consequence of its being late and stormy, permitted the paupers to go back to the plaintiff’s, on their stipulating that they would return to Mowry’s in the morning. This is equivocal and not sufficient proof of a contract.
The count for money had and received is not supported by evidence. All the circumstances negative the allegation, that *30the money was received for the use of the plaintiff. The defendants made a contract with Mowry, and the clothes which they sent to the paupers were paid for by him. ,
The plaintiff offered evidence tending to show ill treatment of the paupers on the part of Mowry, and the instruction of the judge on this subject is objected to. It is not necessary to scrutinize the correctness of this instruction taken abstractly ; it was given in reference to the circumstances under consideration. If there was inhumanity on the part of Mowry, notice should have been given to the overseers, and if they had neglected to correct the misconduct complained of, or to provide other suitable support for the paupers, an individual might be warranted in providing for their relief at the expense of the town, in the same manner as if no provision had been made for them, after due notice to the overseers. Si. 1793, c. 59, § 13.
Judgment affirmed.