The opinion of the court was delivered by
Redfield, J.This action was book account, and was heard on the report of the auditor. The plaintiff’s daughter was a charge on the defendant town. The auditor has found, after giving a history of the case in detail, that the plaintiff agreed, conditionally, to keep the pauper for the year ending March, 1872, for $150, if her condition remained the same; but if she should require more attention, nursing, and doctoring, then the plaintiff must have additional compensation ; that the overseer left the pauper in the plaintiff’s care and custody during that year, and intended to comply with plaintiff’s proposition, and pay her the $150, and such further compensation as should be reasonable, if the pauper should become worse. She did become worse, and the enhanced expense thereby of taking care of her, was $50, making in all for that year, $200. The auditor reports that the plaintiff insisted upon the increased compensation in the contingency which did occur ; and the overseer, allowing the pauper to remain in the custody and care of the plaintiff, is presumed to have assented to the plaintiff’s proposition. The auditor having *9found a contract, we do not feel warranted in declaring that it is found without evidence.
II. The court below, upon the facts reported by the auditor, allowed the plaintiff to recover for the last forty-one and a half • weeks, $3.50 per week, as upon a contract for that price. The defendant insists that the plaintiff may recover $6 per week for ten weeks, up to the time, in May, 1872, when the overseer, Wheelock, with Mr.' Gould and wife, undertook to remove the pauper to Mr. Gould’s, who had contracted to support and care for the child for $3.50 per week. The plaintiff resolutely resisted, and prevented the removal of the child to Mr. Gould’s. The overseer then told the plaintiff that, as she resisted his taking the custody of the child, “ she should not have a cent for keeping her.” The overseer, after leaving the house, seemed to think his language hasty and inconsiderate, and immediately went back into the house, and told the plaintiff “ he would take back what he had said, and if she was a mind to accept of $3.50 per week for keeping the child, she might have it. That ended the interview.” And the auditor, “ from the testimony and circumstances, infers that the plaintiff, in her mind, intended to'take that sum, probably hoping that the town would finally give her more.” The law casts the duty upon the overseer to support the poor, and he has the correlative right to the control and custody of their persons and effects. But this, like all general rules, must have its exceptions. The auditor finds that Mr. Gould and wife were as suitable persons to take charge of the child, as' any strangers, and that “ to put the child to a strange place, away from her mother, and lacking her care, encouragement, and love, would have endangered her life yet, “ the moving the child from the plaintiff’s to Mr. Gould’s would not endanger her life.” While the overseer has the right to the custody of the pauper, he must exercise that right in reasonable deference to the laws of humanity and decency. If he should attempt to remove his ward at a time, and in a manner, that life would thereby be endangered, without any overruling necessity, or to treat a delicate woman in such manner as to shock the common sentiments and feelings of modesty and propriety, he ought not to complain if resisted. And *10there are many eases where the town must take charge of the poor where they are found ; and, if unable to agree, must submit to a quantum mpruit as the rule of compensation. But these are exceptions arising from the necessity of the cases. We do not discover that the provision of the overseer in this case, was not ordinarily humane and provident. The girl could be removed without serious detriment; and the preparation for her removal was, evidently, prompted by considerate kindness.
The opinion of the auditor, “ that to be put to a strange place, away from her mother, and lacking her care, encouragement, and love, would have endangered the child’s life,” is, necessarily, speculative. Persons afflicted with disease of any kind, and of all ages, sexes, or conditions, are taken to the hospital, and estranged from parental care, that they may receive the benefit of trained nurses and the appliance of better treatment; and this is deemed humane, and an advance in civilization. The conflict of opinion between the parties was not unnatural. Maternal love and tenderness, made keenly sensitive by continued care and sympathy with affliction, “ had the mastery ” of the plaintiff. And this we do not deem a fault. But we think the rights and duties of the parties in this case, are not to be determined by any imputed misconduct of either.
The sole inquiry as to this branch of the case is, was there a contract as to the compensation ? The town insisted that plaintiff must keep the child for $3.50 per wéek, or allow her to be supported elsewhere. The plaintiff declined the former, and resisted the latter. The overseer then notified her that if she forcibly retained the child, she could have no remuneration. Whether the plaintiff could recover any compensation after this date, if the case ended here, we do not determine. But the overseer went back, took back what he had said, and told her “ if she was a mind to accept $3.50 per week for keeping the child, she might have it and she kept the child. This was an offer not refused. She continued to perform the service without notice that the offer was rejected. It is true that she had before rejected the same offer, but the relation of the parties had become changed. The overseer chose to revoke his declaration, and then renewed his *11offer. When compensation is offered as the inducement for service, and the service is performed, it is, ordinarily, the most conclusive acceptance of the offer. Had the plaintiff claimed the compensation offered, in this case, the town would have had a very awkward defense. The only embarrassment arises from the fact that plaintiff testifies that “ she did not agree to keep the child for $3.50 per week,” yet “ in her own mind intended to take that sum.” But the defendant town had the right to understand that, by performing the service, she acquiesced in the offer ; and there being no notice to the contrary, it was an acquiescence in, and assent to, the offer. And if 'that be so, it was support furnished at the “ request” of the town.
We find no error in this branch of the case, and the judgment of the county court is affirmed. .