Argued at the general term, 1867, and decided at the general term, 1869, when the opinion of the court was delivered by
Pierpoint, C. J.The plaintiff in this case seeks to recover, 1st, on the ground, that the defendants, in their character of selectmen of the town of Newbury, promised in behalf of said town that if the plaintiff would enlist as a soldier, under one of the calls for volunteers, and be set to the credit of said town, that he, the plaintiff, should be paid as large a bounty as the town paid to any other volunteer under that call, but that as the defendants had no authority from the town to make such promise, they failed to bind the town thereby, hence bound themselves personally.
*281We think it quite clear that upon the facts stated in the bill of exceptions, the county court were right in holding that the defendants did not make themselves personally liable in consequence of having transcended their authority from the town.
At the time the promise was made, both the plaintiff and the defendants well knew that the defendants had no authority fro,tn the town to make any such agreement, and if they had attempted to make any such promise, the plaintiff would not have been warranted in relying upon it; but it does not appear from the exceptions that the defendants undertook, in behalf of the town, to promise the plaintiff to pay him, in any contingency, any more bounty than he has already received. They made certain declarations upon the subject of bounty, but made no allusion to what the town would or would not do, and the plaintiff knowing, as the case finds, that the defendants had no authority from the town, had no right to understand therefrom that the defendants were attempting to bind the town by such declaration.
The war meeting referred to does not appear to have been called for the purpose of voting bounties or to consider that subject, but for the purpose of encouraging and promoting enlistments, and what may have been said at the meeting on the subject of bounties can have no effect upon the liability of the town, as it had no reference to it and could not have been so understood by the plaintiff.
The plaintiff claims, 2d, to recover on the ground that the defendants promised personally to pay him as a bounty a sum equal to the amount paid by the town as bounty to any other volunteer that enlisted under that call; and insisted on the trial below that his evidence tended to establish that «fact, and that he had the right to go to the jury on the question. The county, court ruled that the evidence had no tendency to prove the fact, and directed a verdict for the defendants.
Upon examining the evidence detailed in the exceptions, in connection with the judge’s minutes of the testimony taken upon the trial, which are made 'a part of the exceptions in respect to this point, we think the evidence did tend to show a personal undertaking on the part of the defendants, and might have been so understood by the plaintiff. How the fact was, it was for the jury to *282determine upon the whole case. What was said between the parties after the war meeting and at the time when the enlistment contract was completed, in view of the fact that both parties knew that the defendants had no authority to bind the town, might have been intended by the defendants as a personal undertaking by them, and have been so understood and relied upon by the plaintiff. The defendants it is true denied the testimony on the part of the plaintiff in this respect.. Which was right, was for the jury.
The fact that the enlistment contract was in writing, constitutes no obstacle to the proof of an agreement, such as the plaintiff claims, by parol. It constituted no part of the enlistment contract; that was with the government. This was between these parties, and if made would operate as an inducement to the plaintiff to enter into that contract, and if the plaintiff, relying on it, did enlist, that would constitute a sufficient consideration to support the promise of the defendants, even though they had no interest in the enlistment, personally, and derived no benefit from it; the plaintiff was prejudiced thereby and that is sufficient.
The judgment is reversed and case remanded.