The Proprietors of the second turnpike road in New Hampshire versus Taylor, 6 N.H. 499

By the Court. Paeker J. The defendant does not bring his case within the proviso in the plaintiffs’[charter. He went to Weathersfield in Vermont to purchase lumber for bis own use. If this might be considered as within the common and ordinary business of family concerns, (17 Johns. 33; 2 Vermont Rep. 512; 2 Pick. 533) the place to which he went to transact this business was not within the same town in which he resided, and he is not therefore entitled to exemption upon that clause of the proviso. 4 Pick. 388, Kent v. Newburyport Turnpike.

Had the case stated, that the defendant went to a mill for the purpose of purchasing the lumber, a question might have arisen, whether the words “ within the same town,” at the close of the proviso, are applicable to all the clauses of the sentence, so that to bring an individual within the exemption, the mill must be situated within the same town, or whether those words are to be applied only to that branch of the proviso, relating to the common and ordinary business of family concerns.

But as the case does not state that the defendant went to any mill, or was passing to or from one, and we cannot infer that such was the fact, that question is not presented for our decision, and upon it we give no opinion. Nor can the objection to the form of action avail the defendant. It is well settled that assumpsit lies for tolls. 1 N. H. Rep. 20, Chesley v. Smith; 1 D. & E. 616, Seward v. Baker; 2 Wils. 95 Mayor of Exeter v. Trimlet; 3 Burr. 1402, Mayor of Yarmouth v. Eaton; 2 Green. 404, Bear Camp River Company v. Woodman; 17 Johns. 33, Newburgh Turnpike v. Belknap; 2 Pick. 538, Medford Turnpike v.

Torrey. There was in this ease no express promise to pay, but the law implies the promise, and the implication is founded upon the defendant’s own act. Nor can his refusal to pay alter the case. This is no more than saying that he was under no legal obligation to pay, and does not prevent the implication of a promise, it being found that he is legally liable to pay toll. If the right to receive tolls, and the duty to pay, had been defeated, or had never arisen, by reason of this refusal, then a promise to pay could not be implied against the express dissent of the defendant. But such is not the fact.

The right to receive the tolls arises from the use of the road by the defendant. 3 Barn. & Adolph. 411, Mayor, &c. of Newport v. Saunders. And the duty to pay is not the less imperative because the defendant himself supposed he was not liable, and refused to pay. 1 Camp. 222, Morris v. Burdett. The implied promise arises from this right of the plaintiffs, and the duty and liability of the defendant, consequent upon his use of the road, and is not dependent upon his denial or admission of the obligation.

An individual purchasing merchandize could, surely, not defend against an action of assumpsit for the price, by showing that upon payment being requested, when the merchandize was delivered to him, he refused to pay. This case may be distinguished from Whiting v. Sullivan, 7 Mass. 107. There the defendant sent a horse to the plaintiff, not as his own, but as the horse of the plaintiff. The plaintiff was not authorised to receive and keep him as the horse of the defendant, against his express declaration to the contrary, and it was held that no promise coaid be inferred.

In other words a right to receive, and a duty to pay, did not arise upon those facts. Bot here is both, notwithstanding the refusal of the defendant. Judgment for the plaintiffs.