#### Welch vs. The Town of Sugar Creek.

(1, 2) *Evidence.*— (3) *Qowrt and Jwry.*— (4-6) *Volunteer's claim to bounty. Conditions of liability.*

1. One who has put in evidence a certificate from the adjutant general’s office of his enlistment in the military service of the United States, is not hound hy the dates in- said certificate, hut may show hy parol the time when he was actually *must&red in,*where that is material.

2. Declarations made hy the assignor after his assignment of a claim, are not admissible in evidence against the assignee; and’where the question put to a witness is in such a form as to call for declarations made *after*as well as *before*the assignment, there is no error in overruling it.

3. Where there was sufficient evidence to go to the jury tending to show that plaintiff, suing as assignee of several claims, would have an absolute right, against his assignors, to the amount which he might recover, a motion to dismiss the complaint on the ground that he was not the sole party in interest, was properly denied.

4. Where one enlisted in the service of the United States and had himself credited to a certain town, and notified the town officers of the fact, it was not necessary, in order to entitle him to a bounty offered hy the town that he should “ *accompany such notice*with evidence sufficientto warrant the officers in paying him the bounty.” It was sufficient that the proofs were furnished before the bounty, was paid.

5. Persons who thus enlisted and were credited to the town, with knowledge of and with the intention of obtaining the bounty offered by such town, and who gave notice to the proper town officers, became entitled to the bounty in the order of time in which they severally gave such credits to the town and gave notice thereof, unless the town had already filled its quota by procuring the proper number of men to be enlisted, mustered into servioe, and credited to it.

6. After notice duly given (which need not be in writing), the town officers were bound to inquire into the facts alleged in such notice; and the town became liable, if the facts were as stated.

*619APPEAL from tbe Circuit Court for *Walworth*County.

On tbe 30tb of January, 1864, tbe defendant town voted to “raise a tax of $200 to be paid to eacb volunteer that should thereafter enlist and be accepted into tbe United States service, and be credited to ” said town; “ and that to eacb volunteer so enlisting town orders might be issued, payable after tbe [then] next annual tax was collected; tbe number of volunteers to be paid being limited to twelve.” Tbe plaintiff and three other persons, Jacobson, Paraisb and Gates, subsequently re-enlisted in tbe service, and were credited to tbe defendant town; and on tbe 20th of December, 1869, tbe three persons last named executed to tbe plaintiff an assignment in tbe following form: “ For value received we hereby assign and set over to *William H. Welch*our claims for tbe sum of $200 eacb, and interest from January, 1865, against tbe *Town of Sugar Greek;*being tbe amount of bounty due eacb of us from said town on account of our enlistment and credit to said town under resolution of said town, dated January 30th, 1864.” Tbe present action was brought to recover tbe amount of plaintiff’s own claim, with that of tbe three claims assigned to him.

Tbe complaint alleges that on or about February 13, 1864, *with notice of said*offer, *and with a view to obtain the bounty*so offered, plaintiff and bis assignors, being residents of tbe defendant town, eacb duly enlisted and was accepted into tbe military service of tbe United States, etc., and eacb was credited to tbe defendant town, etc.; that said town *was immediately notified*of such enlistment and credits, and that such enlistment and credits were *the first*after said meeting of January 80, 1864. Demand and refusal of payment, and tbe assignment to plaintiff of tbe three other claims, were also duly alleged. Tbe answer denies all these averments except that of demand and refusal; and it alleges: 1. That soon after said meeting of January 30, 1864, and before tbe town bad any notice that plaintiff and bis said assignors bad enlisted and become credited to tbe town, defendant bad procured tbe enlistment of other men sufficient to fill *620its quota, and bad become liable to pay, and did pay, tbe bounties to sncb other enlisted men. 2. That plaintiff was not the sole party in interest, but that Jacobson, Parrish and Cates retained an interest in their respective claims.

On the trial, plaintiff put in evidence, 1. The adjutant-general’s certificate, showing, among other things, that ten persons therein named were enlisted in the United States service and credited to the defendant town as volunteers or re-enlisted veterans, at certain specified dates, ranging from the 2d to the 16th of February, 1864. From this certificate it appeared that Cates was enlisted on the 2d, Jacobson on the 6th, and Parrish and the plaintiff on the 13th of said month. 2. A deposition of one Kingman, that he was captain of Company H in the 13th Regiment of Wisconsin volunteers, in which company and regiment the plaintiff and his said assignors *belonged;*that they re-enlisted in the United States service and became credited to the defendant town in February, 1864; that Cates and Jacobson mustered into the service on the 10th, and Parrish and plaintiff on the 15th of said month; that *before they were mustered in,*he (deponent) had received a letter from a resident of the defendant town, informing him of the offer of said bounty, and that he communicated the information to said veterans; that Gates and Jacobson re-enlisted on the 2d and 6th of February, and although they were not mustered in until the 10th, yet this mustering in took effect horn the date of their enlistment ; and that deponent, in the latter part of said month of February, as the authorized agent of said veterans, notified the supervisors of the defendant town of their re-enlistments and credits, and demanded the bounty for .them, which was refused. 3. The testimony of the plaintiff and his said assignors as to the fact of their re-enlistment, crediting to the defendant town, and mustering in at the several times above stated. On the direct examination of Jacobson and Parrish, defendant objected to their testifying as to the date of their *mustering in,*on the ground that this was a matter of record, and such testimony was *621not tbe best evidence; but tbe objection was overruled. 4. Tbe testimony of tbe father of Captain Kingman above named, tbat be was present at said town meeting of January 80, 1864, and on tbe same evening wrote to Captain Kingman, informing bim of tbe bounty offered by tbe town, and tbat be mailed tbe letter tbe same evening, and it would go by tbe mail on February 1st. 5. Tbe assignment above described.

For tbe defendant, one Edwards testified tbat be was chairman of tbe board of supervisors of said town in 1864; tbat, as sucb chairman, on tbe 1st or 2d of February, 1864, be entered into a written contract with one McCrackin, for twelve volunteers to fill tbe quota of tbe town; “tbat tbe men were furnished according to contract, and town orders issued and paid; and that part of said men were put in before tbe plaintiff and his associates were credited to said town, and part after sucb credits.” The court refused to allow testimony showing tbat at said town meeting of 30th January, a resolution was offered and voted down, declaring tbat tbe offer of bounty should apply to re-enlisted veterans (sucb vote not having been recorded), unless accompanied by proof tbat plaintiff and his assignors bad notice of sucb vote before their re-enlistment. It also sustained plaintiff’s objection to a question put to one of defendant’s witnesses as to whether be (tbe witness) beard Parish “state last winter [viz., tbe winter of 1869-70], anything about Ms claim — whether be bad any against tbe town or otherwise ? Tbe objection was made upon tbe ground tbat declarations of tbe .assignor, made after tbe assignment, were not admissible against tbe plaintiff. Tbe defendant also called and examined tbe plaintiff and Ms assignors, with a view to showing by them tbat the assignment aforesaid was not absolute, but that there was some agreement between the parties by which said assignors really retained an interest in their respective claims. Tbe evidence of these witnesses need not be stated. The court afterwards refused to admit evidence offered by defendant of declarations made by tbe assignors after the assignment, to show that sucb *622assignment was not absolute; and it overruled a motion to dismiss tbe complaint on tbe ground tbat it appeared tbat plaintiff was not tbe sole party in interest.

Tbe court instructed tbe jury, *inter*alia, as follows:

*“*Upon tbe matter of tbe assignment of tbe claims of Parrish, Gates and Jacobson to tbe plaintiff, you bave tbe written assignment to tbe plaintiff signed by these persons, and tbe testimony of tbe several witnesses. Tbe assignment is absolute in its terms and fair on its face, and is sufficient in law to convey tbe entire interest of tbe owners of those claims to tbe plaintiff. Nevertheless, if these claims were assigned to tbe plaintiff merely for tbe purpose of collection, with tbe understanding tbat tbe plaintiff was to collect them and account to tbe original owners for tbe proceeds, tbe plaintiff in such case would not be tbe owner of them, and would bave no right to sue and recover on them in bis own name. But in order to transfer tbe title to these claims to tbe plaintiff, it was not essential tbat anything should bave been paid down for them; nor even tbat there should bave been any agreement to pay for them at all. It was competent for tbe owners of tbe claims to assign them to tbe plaintiff without any consideration, as a gift, or with tbe understanding tbat be was to pay for them what they were reasonably worth, or whatever tbe plaintiff should see fit in bis discretion to pay at any future time, or after they should be collected. If there was an absolute transfer of tbe claims to tbe plaintiff, either as a gift or sale, without any agreement tbat they were to be taken by him merely for collection, be would be entitled to recover on them in bis own name, provided they were legal claims against tbe town in tbe bands of tbe original owners.”

Tbe instructions given at tbe request of tbe respective parties, and those requested by defendant, but refused, will appear from tbe opinion.

Verdict and judgment for tbe plaintiff, for tbe full amount claimed; and defendant appealed.

*623
      *H. S.*Winsor, for appellant,

argued tbat tbe question of tbe *time*when Jacobson and Parrisb were mustered in was material, and tbe best evidence should bave been given, viz., tbe record in tbe adjutant general’s office at Madison, or in tbe war office at “Washington; tbat tbe plaintiff was also bound by tbe adjutant general’s certificate, which be bad .abeady put in evidence ; tbat tbe question as to what a witness bad beard Parrisb say during tbe winter of 1869-70, should not bave been overruled, as it did not necessarily call for declarations made after tbe assignment; tbat it was apparent from tbe testimony of tbe pretended assignors tbat tbe assignment was a sham, and tbe court should bave granted tbe motion to dismiss the complaint ; and tbat a bare “ notice ” to tbe town officers tbat persons bad enlisted, without any evidence to support it, ought not to be held sufficient to bind tbe town to tbe payment of bounties, and therefore tbe court erred in refusing tbe second instruction asked by defendant, and in giving tbe instruction upon tbe same point asked by plaintiff.

*Spooner &*Harkness, for respondent,

contended tbat plaintiff might use tbe adjutant-general’s certificate to show tbat be and bis assignors bad been duly credited to tbe defendant town, without being bound by tbe dates of such credits as therein stated, and might show by other evidence tbe date of their mustering in, before which time such credits could not properly be given *(Buck v.*Cole, 4 Sandf.,*79; Draper v. Snow,*20 N. Y., 331, 333; 2 Parsons on Con., 66; 3 Phil. Ev., 4th Am. ed., 143); tbat tbe parties here, being both strangers to tbe enlistment contracts of plaintiff’s assignors, are not estopped from showing tbe facts (2 Parsons on Con., 68, 69); and tbat evidence of tbe declarations of assignors, made after tbe assignment, was properly excluded. *Paige v.*Cagwin, 7 Hill, 361; *Brown v. Mailler,*12 N. Y., 118; *Bates v. Ahleman,*13 "Wis., 644; *Grant v. Lewis,*14 "Wis., 487; *Bogertv. Phelps,*id., 88.

Colb, J.

"We really can see no force in tbe objection which *624was taken to the question asked tbe witness Jacobson as to the time he was mustered into the service of the United States. The objection was, that this was not the best evidence of the time when he was mustered in, and that the muster rolls should have been produced, which would show the time. The plaintiff had already put in evidence the certificate of the adjutant general of the state, which purported to show when the witness, Gates, Parrish, and the plaintiff were re-enlisted. But it is very plain that the plaintiff was not bound by the dates in this certificate. As is well observed in the brief of the counsel for the plaintiff, the record from the adjutant general’s office is not a record of a contract; it was not signed by the soldier, and there is no reason why he should be bound by the dates there contained. Even in contracts of the most solemn kind, where the date of their execution becomes material, it may be proven by parol, “ not merely to supply an omission where the paper itself is without date, but in opposition to the date, where it contains one. The time when a contract is executed is no more a part of the contract than the place where it is executed.” SeldeN, J., in *Draper v.*Snow, 20 N. Y., 331, 333; *Breck v. Cole,*4 Sandf. (S. C.), 79. And for still stronger reasons should the soldier be permitted to show, even by parol evidence, when he was actually mustered into the service, whenever that fact becomes material. Eor, as we understand, the practice of the general government was not always to muster the soldier in on the same day he signed the enlistment paper. Erom necessity some days would frequently intervene before the mustering officer could have the proper medical examination made. We therefore think there was no error in allowing the witness to testify to the time he was mustered into the service.

The next error relied on by the defendant is, the exclusion of the question asked the witness Kinney. Eor the purpose of showing that Parrish had no claim for bounty against the defendant, this witness was asked whether he heard “ Parrish state *625last winter anything about 'his claim — whether he had any against the town, or otherwise ?” For the most obvious reasons this question, in the form in which it was put, was clearly objectionable. The plaintiff had already shown a written assignment by Parrish to him of the former’s claim against the town, which assignment bore date December 20, 1869. Nov»' declarations made by Parrish after he had assigned his claim, could not be admitted to affect the rights of his assignee. The question called for declarations made “last winter,” that is, declarations which might have been made after the assignment. The cases of *Bates v.*Ablemann, 13 Wis., 644; *Bogert v. Phelps,*14 id., 88; and *Grant v.*Lewis, id., 487, show that there was no error in this ruling of the court.

The nest objection tahen by the defendant is, the refusal of the court to dismiss the complaint on its motion, for the reason . that the testimony showed that the plaintiff was not the sole party in interest. The court had previously held that though the assignment by Gates, Parrish and Jacobson to the plaintiff of their claim against the town was in writing, and fair and absolute on its face, still the defendant might impeach it by showing that it was merely colorable and not real, but assigned for collection only; and the defendant went into the question of the *bona fides*of the assignment. The assignors were interrogated very fully as to the consideration and circumstances of the assignment. And, as it appears to us, it is idle to claim that there was not testimony to go to the jury upon the question whether the assignors had not made a complete and full transfer of their interest to the plaintiff, and that he was entitled to the full proceeds of the claim when collected. If there was sufficient evidence to go to the jury upon that question, then it is very manifest the court properly refused to dismiss the complaint on the ground that the plaintiff was not the sole party in interest. And it may be added in this connection, that the court instructed the jury, in reference to this point, to the effect that while the assignment was absolute in its terms, and *626fair upon its face, and was sufficient in law to convey tbe entire interest of tbe assignors in tbe claims against the town, still, if these claims were assigned to tbe plaintiff merely for tbe purpose of collection, with tbe understanding that tbe plaintiff was to collect them and account to tbe original owners for tbe, proceeds, then tbe plaintiff was not tbe real party in interest, and bad no right to sue and recover on them in bis own name. This was submitting tbe question upon tbe evidence to tbe jury, whether tbe plaintiff was tbe real owner of those claims, entitled to sue in his own name upon them, and to receive and control tbe proceeds when collected. And we think this was all tbe defendant could require under tbe circumstances.

This remark, too, will dispose of tbe objections taken to tbe refusal of tbe court to give tbe third and fourth special instructions asked on tbe part of tbe defendant. For tbe jury were told that tbe plaintiff could not recover unless, upon tbe collection of tbe claims, tbe proceeds would belong to him and could be appropriated to bis own use.

At tbe request of tbe defendant tbe court also instructed tbe jury, that before they could find for tbe plaintiff, they must be satisfied that at tbe time tbe plaintiff, Grates, Jacobson and Parrish enlisted and were mustered into tbe military service of tbe United States, and became credited to tbe town of Sugar Creek, they bad knowledge that said town had offered a bounty, and that they enlisted, were mustered in and became credited to ,said town upon its quota with an intent or with a view to obtain such bounty; that tbe bounty, at least, must have been one of ■tbe objects for such enlistment and credit to the town.

Tbe court refused to give tbe second instruction asked on tbe •part of tbe defendant. It is admitted in tbe brief of tbe counsel for tbe defendant, that this request is clumsily drawn; and it is so. Tbe meaning is not very clearly expressed, whatever iit may be. H we understand tbe instruction correctly, it was, a direction to tbe jury that a volunteer who bad enlisted and 'become credited to a town in consideration of a bounty offered *627by tbe town, must give notice to tbe town authorities that be bad so enlisted and become credited on its quota, and that be must also accompany sucb notice with evidence sufficient to warrant tbe officers in paying him tbe bounty. But it was not possible for tbe volunteer to always accompany his notice with legal proof of tbe fact of bis enlistment. If that proof was furnished before tbe officers paid tbe bounty, tbe town was amply protected. But tbe court did give tbe following instructions at tbe request of tbe plaintiff, which, we think, contain tbe law applicable to tbe facts disclosed by tbe evidence:

“ In case any person or persons did so enlist, become mustered into tbe service of tbe United States, and accredited to tbe town of Sugar Creek, and did give notice thereof to the proper town officer or officers, with knowledge of and with tbe intention of obtaining tbe offered bounty of $200, sucb persons would become entitled to said bounty in tbe order of time in which they severally gave sucb credits to tbe town and gave notice thereof to tbe town officers; unless tbe town bad already filled its quota of twelve men by securing sucb men to be enlisted, mustered into service and credited to tbe town.”

“ It was not necessary that tbe plaintiff, or others who bad procured themselves to be credited to tbe town of Sugar Creek as before stated, should give tbe said notice to tbe town officers in writing or in any particular form of words, but simply that they should inform tbe town officers, either by words or in writing, of tbe fact of tbe enlistment and credit to tbe town, and that they claimed the offered bounty. After such notice was given, tbe town officers were bound to inquire as to tbe facts, and tbe town became liable to pay tbe offered bounty, if tbe facts were true as stated.”

Tbe general charge of tbe court upon tbe question of assignment of tbe claims to tbe plaintiff, is fully sustained by tbe case of *Cummings v.*Morris, 25 N. Y., 625, and we think was substantially correct

This disposes of all tbe exceptions relied on for a reversal of tbe judgment.

*628
      *By the*Court.— Tbe judgment of tbe circuit court is affirmed.

Lyoít, J., took no part in tbe decision of tbis cause, tbe plaintiff baying been a member of bis regiment when tbe cause of action arose, and it appearing probable that plaintiff, and others similarly situated, consulted with him as to their right to a town bounty.