Opinion
Opinion filed May 4, 1937.
Bill in Equity to Recover for Services Performed, etc., by City Official Held Demurrable.
In suit in equity against city to recover for services rendered, disbursements made and obligations incurred by plaintiff as city clerk and treasurer and clerk of the city council, and for improper interference by the city council with his rights and duties in such offices, held, on demurrer, that plaintiff had an adequate remedy at law, though he could not recover in a single proceeding upon separate rights of action in contract and tort.
APPEAL IN CHANCERY. Bill of complaint against city seeking to have court declare that plaintiff and city council occupied separate official entities, to recover for plaintiff's services and for disbursements made and obligations incurred by him as city clerk and treasurer and clerk of the city council to recover punitive damages for interference by the city council with the performance of his duties, and to have the court approve his report as city treasurer. The defendant demurred on the ground that the plaintiff had an adequate remedy at law. Hearing on bill and demurrer at the September Term, 1936, Orleans County, Shields, Chancellor. Demurrer sustained; bill adjudged insufficient and dismissed. The plaintiff appealed and filed a bill of exceptions. Decree affirmed and cause remanded with leave to the plaintiff to apply for a transfer to a court of law.
William C. Lindsay, pro se. Hubert S. Pierce for the defendant.
Present: POWERS, C.J., SLACK, MOULTON, SHERBURNE and BUTTLES, JJ.
If the plaintiff has a valid claim against the municipality for services performed, disbursements made, or obligations incurred by him as city clerk and treasurer and clerk of the city council, or by reason of any improper interference by the city council with his rights and duties as such, he has an adequate remedy in a court of law, although he cannot expect to recover upon separate rights of action in contract and tort combined in one and the same proceeding, as he has attempted to do in his bill of equity. Ware v. Estabrooks, 73 Vt. 92, 94, 50 A. 543; Dean v. Cass, 73 Vt. 314, 315, 50 A. 1085. The demurrer was properly sustained. Jones v. Stearns, Admr., 97 Vt. 37, 44, 122 A. 116, 31 A.L.R. 653; Holman v. Randolph National Bank, 98 Vt. 66, 75, 76, 126 A. 500.
Decree affirmed and cause remanded with leave to the plaintiff to apply for a transfer to a court of law, if he be so advised.