
    George Steinberg v. Town of Eden.
    
      Contract. Bounty. Beivard. Enlistment. Towns.
    
    Under a vote to pay $300 to each volunteer that it is necessary to raise to fill a certain quota, if it turns out that hut one man is necessary, the first man mustered in to the credit of the town under the call after the vote, will he entitled to recover the money, even though he is not the first to enlist.
    If the soldier is mustered in while the deficiency is outstanding against the town, it is not material, whether the adjutant general actually reckons him on the deficiency, or not. The soldier is not responsible for the adjutant general's mode of keeping his hooks, and his hooks profess to show only the standing of the town with the government, and not of the soldier with the town.
    Jin offer of a bounty to “ each volunteer necessary to raise,” is general, and direct from the town to the volunteer. Under it there need he no contract with the selectmen.
    It will not prejudice the plaintiff’s right that, at the time he was mustered in, the defendants’ selectmen had taken steps to fill the quota by procuring men to sign contracts of enlistment, so long as they had not in fact filled the quota.
    Assumpsit. Plea, tbe general issue. Trial by tbe court, March term, 1868, Peck, J., presiding.
    Tbe plaintiff claimed to recover a bounty for enlisting and being mustered into the United States volunteer service to tbe credit of Eden, and serving under that enlistment in tbe late rebellion.
    Tbe plaintiff introduced a copy of record of a town meeting ofi tbe town of Eden, beld December 8, 1863, at which the town voted “ To pay three hundred dollars to each volunteer that it is necessary to raise, to fill the quota of 300000 men of tbe last call of the president of tbe United States, for this town.” It appeared that October 17, 1863, the president made a call for 300000 men, and that the quota of the town of Eden under that call was fifteen men, exclusive of any credits for surplus men under previous calls. The plaintiff introduced a certified copy of record from the office of the adjutant general of this state, showing, as the plaintiff’s counsel claimed, the credits of the town of Eden from November 9,1863, to March 1,1864, and that the plaintiff was enlisted December 16, 1863, and was the first soldier mustered in and credited to the town of Eden after December 8,1863 ; also a copy of record from the adjutant general’s office, showing, as the plaintiff’s counsel claimed, that the quota of Eden under the «all for 300000 men of October 17, 1863, was fifteen men.
    
      The plaintiff also introduced general order No. 2, dated November 2, 1863, as entered in the adjutant general’s printed report, on page 115, and the tabular statement on the three nest following pages, from which it appeared that the aggregate number of men Eden was called on to furnish under that call, after deducting all credits, was eight. At this time the town had a credit of thirteen surplus, and their quota under the call for 300000 was fifteen men, and there were sis men due from the-town for deficiency under the draft referred to in said order . of the adjutant general; making twenty-one men with whom the town was charged, and, after deducting the credit of thirteen, leaving eight men whom the town were called on to furnish under the call at that time. The call on the town for the eight men was made about November 2,1863. If the credit is first ajjplied to extinguish the deficiency under the draft, the eight men were all under the call for 300000 of October 17, 1863 ; but if the whole credit is applied to reduce the quota of fifteen, it leaves six men due under the draft, and two men under the call for 300000 of October 17,1863. But by an order of November 6, 1863, which was put in evidence by the defendants, the draft was-suspended or superseded, or else, as the defendants’ counsel claimed, it was annulled. The order, or circular, is on page 124 of the printed volume of the adjutant general’s report for 1863-1864, entitled “ Circular No. 2.” It appeared that that draft never took place, but men were supplied by subsequent calls. But Asa Smith, a witness on the part of the defense, testified, among other things, in effect, and the court so found, that he was-one of the selectmen of Eden in 1863 and 1864, and attended to-the enlisting of men to fill the quota of that town, and that he-understood and considered that by that call the town had to furnish eight men, and that he so understood it at the time of the-meeting, December 8, 1863; and it appeared that the selectmen of that town, in answering that call, acted upon that understanding.
    It appeared that the plaintiff, prior to and at the time of his enlistment hereinafter stated, was a soldier in the military volunteer service of the United States, in the army of the Potomac, and was at Brandy Station, under a term of enlistment that was about to espire ; that be was in company D of the 5th Vermont regiment; that a few days before December 15, 1863, he saw a letter which was written by some one in Eden to ¥m. Demeritt, a brother-in-law of the plaintiff, .and a fellow-soldier with the plaintiff from Eden in the same company, to the effect that the town of Eden would pay a bounty of $300 each to soldiers who would enlist to the credit of that town under the then call; that, relying on that, and being assured by his superior officers that it was so, the plaintiff re-enlisted to the credit of Eden on the 15th of December, 1863, at Brandy Station in Virginia, in the same company and regiment; and that he did 'so on the faith of said vote of December 8,1863, with the design and expectation of receiving such bounty therefor, and December 16, 1863, he was mustered in to the credit of said town, relying on receiving said bounty therefor, under the vote of December 8, 1863. The plaintiff was the first man that was mustered in to the credit of Eden after said vote of the town of December 8, 1863. There were four other soldiers, then serving in the same regiment with the plaintiff, who reenlisted to the credit of Eden on the same day the plaintiff did, and were mustered in the same day he was mustered in, but the plaintiff was the first of the five that enlisted, and was the first that was mustered in.
    On the 17th of December, 1863, the selectmen warned another meeting of the town of Eden, to be held December 30, 1863, on the subject of filling their quota, at which meeting, on said 30th of December, the town voted to raise on the grand list $300 each for the first six men who should enlist into the service of the United States to save the draft.
    It appeared that the selectmen, under the call for eight men, enlisted that number in December, 1863, and January, 1864 (aside from the five who enlisted in the field, as above stated), all of whom, so enlisted by the selectmen, were enlisted after December 8,1863, except one, Haskell Foster, who enlisted and was mustered in as early as November 14,1863. Dan Jones, one of these men that the selectmen enlisted, was enlisted December 9, 1863, and Milton H. Brown they enlisted January 11, 1864. Brown and also Joseph Bailey (another of those they enlisted)were mustered in January 26, 1864.
    It appeared, on cross-examination of said Smith, a witness for the defendants, and one of the selectmen of Eden, that the selectmen' were notified by the adjutant general about January 20,1864, by letter, that the plaintiff and the other four who enlisted in the field, as above stated, naming them, had enlisted and been mustered in to the credit of Eden, and that they were credited to said town under said call for 300000 men.
    It appeared from, the testimony of Henry D. Bradley, a witness on the part of the defense, that the account with Eden under the call of October 17,1863, was figured up-and settled, on the adjutant general’s book, which was in evidence, not at the time it bears date, but. February, 1864, and reckoned in computation of quota February 27,1864, same as published March 1,1864, and surplus credit on that settlement carried forward, and included a call made February 1,1864; and that the call of February 1, 1864, was for covering up the draft of 1863. A written notice or letter from the adjutant general to the selectmen of Eden, dated January 5, 1864, was in evidence, also.
    Bradley, in testifying on the part of the defense, under objection by the plaintiff, from the account as ultimately made up on the adjutant general’s book, testified that either Joseph Bailey or Milton H. Brown would apply for the other of the two men due from Eden after deducting the six men due under the draft (meaning the other besides Haskell Foster); that he could not tell which, as Brown and Bailey were both mustered in at the same time, and both mustered in January 26, 1864 ; and testified that the plaintiff would apply on the call of July 18, 1864. This testimony of Bradley as to where the men applied, was seasonably-objected to by the plaintiff, as incompetent; and the court admitted, it subject to the objection, to which the plaintiff excepted. There was no evidence contradicting this, except the paper testimony referred to in the exceptions, and what may be inferred.
    It appeared that July 18, 1864, the president made a call for 500000 men, and the quota of Eden under that call was seventeen men, against which the town had a credit of fourteen surplus men,, which being deducted, left three men Eden was required to furnish to fill that call. It appeared that, if the plaintiff is not, counted as one of the men Eden furnished under the call of October 17,1863, for 300000 men, he, with the four that enlisted», and were mustered in in the field, as above stated, went into said credit of fourteen, and thus went to reduce the number to be furnished by Eden under the call of July 18, 1864, down to three, as stated. This the selectmen were aware of at the time, and knew that these five men were being counted to reduce the quota' of the town under that call, as above -stated. It appeared that, in order to raise the three men to answer the call of July, 1864, for 500000 men, the town of Eden voted to pay bounty to each' volunteer for one year, $300, and to each for three years, $500 ; and, being unable to raise them for that sum, procured them, at a higher price than that.
    • The court decided the plaintiff entitled to recover the $300 bounty and interest, and rendered judgment accordingly for the plaintiff, to which the defendants excepted.
    
      Brigham Waterman and Greo. W. Sendee, for the defendants.
    
      B. O. Benton, for the plaintiff.
   The opinion of the court was delivered by

Steele, J.

The question is whether the plaintiff comes within, the terms of the offer made by the town in their vote of December 8, 1863. The vote was “ To pay three hundred dollars to each volunteer that it is necessary to raise, to fill the quota of 300000 men of the last call of the president of the United States, for this town.” No question is made but the plaintiff was a volunteer, and a volunteer under the call for 300000 men, and under that call “ for this town.” So far he comes strictly within the terms of the vote. But the defendants claim that he was not of the number of volunteers whom it was “ necessary to raise to fill the quota,” and that in this respect he fails to bring himself within the benefit of the offer. He was the first man mustered in to the defendants’ credit after the vote. The officers of the town were notified of the plaintiff’s muster in to their credit six days before they mustered in the; men. enlisted by themselves. They then mustered in Milton H. Brown and Joseph Bailey, and the defendants claim that these men or one of them should take the precedence of the plaintiff. These parties were mustered in January 26. The plaintiff was mustered in on the 16th day of the previous month, and the town were notified of it on the 20th day of the same month. Under this state of facts, we think it very clear that the plaintiff takes.the precedence of Brown and Bailey. He enlisted, procured himself to be mustered in, and the town to be notified of it, sis days before the muster in of either Brown or Bailey. When he was mustered in, the town confessedly stood charged with a deficiency of at least one man upon the records of the adjutant general. For the purposes of this case, it is not necessary to decide whether the town needed to raise more than one man to fill their quota. So long as it is admitted that it was necessary to raise one man, and the plaintiff was mustered in while that necessity existed and appeared upon the books of the adjutant general, and the town were notified of it before they'mustered in any one else, it is unnecessary for him to show that the town still needed more men. It is confessed they wanted one man, and the plaintiff supplied that want. It is entirely immaterial, whether the adjutant general • counted him on that deficiency, or applied him upon a subsequent call. The plaintiff.is not responsible for the adjutant general’s mode of keeping his books. It made no manner of difference with the standing of the town, which one of the soldiers’ names was counted on the excess. The object of these books was to show the standing of the town with the government. They did not profess to show the standing of the soldier with the town. The moment that the town were notified that the plaintiff had been mustered in to supply their acknowledged lack of one man under the call, the right of the plaintiff to demand and recover the promised three hundred dollars, was vested and perfect. No subsequent action of the federal, state or town authorities could prejudice that right. It is true the plaintiff made no trade with the selectmen. None was necessary. The offer was not limited to volunteers who should • contract with the selectmen. If the town had desired to affix such •,a limitation to their promise, they would have expressed it in their vote. As tbe offer stood upon, tbe record,.it was general, and it was direct from tbe town to “ eacb volunteer necessary to fill tbeir quota.” Tbe plaintiff required no conference with tbe selectmen to bring bimself within all its terms. Nor does it alter tbe case, that tbe selectmen bad, before January 20, when they learned of tbe plaintiff’s muster in to tbeir credit, taken steps to fill tbeir quota, so long as they bad not filled it. Until tbe quota was filled tbe offer was open. Tbe selectmen bad enlisted men to fill it, but tbe men bad not been mustered in, and there was no certainty 'that tbe government would accept them, and until tbeir acceptance tbe quota would be outstanding against the town, precisely as if these men bad not enlisted. The preliminary enlistment', until tbe man is accepted by tbe government, is imperfect, and is available neither to diminish the quota of tbe town nor to make tbe town liable to pay a bounty. When tbe selectmen learned on tbe 20th of January that their quota was filled, they might, if they had chosen, have disposed of their chance to the credit of Brown and Bailey, which was in tbeir control, to some other town whose quota was not full. Tbe market for such property was in those ■days quick, and usually of an upward tendency. If, however, they did not choose to take any course to relieve themselves of these men, but, on the contrary, preferred to bold them and to perfect tbeir enlistment by a muster in to tbe credit of the town, they certainly ought not to expect to bold them at the plaintiff’s expense. Tbe selectmen took tbe course most prudent for tbe town. The excess furnished under this call went to reduce tbe quota under subsequent calls when bounties were much higher. Motives of patriotism as well as prudence, induced tbe different towns in tbe state to raise under this call an excess above tbeir quotas, amounting in all to over 2000 men. Of this excess the ■.town of Eden furnished 14. They probably did not accomplish so creditable a result entirely by accident. On the 23d day of January, three days after tbe selectmen bad notice of tbe plaintiff’s muster in to tbeir credit and before tbe other soldiers had been mustered in, the authorities of tbe state issued a circular to tbe selectmen of tbe different towns, appealing to them to raise .men in excess of their quotas, in the following language: “ It is not to be expected that tbe large government bounties now offered, will be continued after tbe first of March. Sound policy would dictate to tbe towns to take advantage of tbeir present offer and raise men in anticipation of a future call. Tbe cessation of labor in any town merely for tbe reason that tbe present quota of tbe town :bas been filled, is but a selfish consideration. Let all tbe men be raised that can be obtained. . Tbe credit will stand against future calls, and tbe government, which it is our pride to uphold, will have tbe present benefit of tbe men where and when they are most needed.” Adj. Gen.’s Eeport, 1864, p. 10-14. If this appeal somewhat affected tbe conduct of tbe defendants’ selectmen, it is not at all to tbeir discredit. But so long as tbe plaintiff comes strictly and precisely within'tke terms of tbe offer contained in tbe vote of tbe town, and he actually was counted by tbe state authorities upon either that quota, or a subsequent quota when tbe town paid much higher bounties, it is difficult to perceive tbe ground in either law or conscience, upon which tbe town may now question bis right to tbe bounty of three hundred dollars. Whether or not it was incumbent upon the plaintiff, to establish all that appears in this case, in order to become entitled to a recovery, it is of course unnecessary to decide.

Tbe judgment of tbe county court is affirmed.  