The plaintiffs gave C no authority, either expressly or impliedly, to construct the sewer on their account. He did not act as their agent or representative. Under these circumstances, the commencement and prosecution of this action cannot be regarded as a ratification of his acts by the plaintiffs. One condition necessary for the application of the doctrine of ratification is lacking, namely, the quality of agency in the acts themselves.
Webb v. Cole, 20 N.H. 490; Richardson v. Payne, 114 Mass. 429; Hamlin v. Sears, 82 N.Y. 327; Sto. Ag., s. 251 a. The plaintiffs did not construct the sewer, and are not entitled to recover under the count for labor performed and materials provided.
It appears that the treasurer, in paying the bills for constructing the sewer, acted in his official capacity. The fact that the plaintiffs brought this action to recover the money so paid, and are prosecuting it, is sufficient evidence of their ratification of the payment. Corser v. Paul,41 N.H. 24. It may be regarded as a payment by them. As has already been shown, the plaintiffs, and consequently their treasurer so far as he acted as their agent, were strangers to the construction of the sewer. The persons who furnished labor and materials for the job had no authority from the plaintiffs to charge the same to them, and such charges had no effect upon their liability. The treasurer paid the bills, not because the plaintiffs were under an obligation to pay them nor because the defendants or their agents had requested him or the plaintiffs to do so, but to accommodate the persons to whom the bills were due, they having use for the money and the treasurer having it on hand. The payment was purely and solely voluntary. The plaintiffs by ratifying it did not change its character in this respect. It raised no implication of a promise by the defendants repay the. sums so advanced, and the plaintiffs are not entitled to recover under the count for money paid at the defendants' request. Chester v. Underhill, 16 N.H. 64; Webb v. Cole, supra; v. Savage, 9 Met. 346; Middleborough v. Taunton, 2 Cush. 406; South Scituate v. Hanover, 9 Gray 420; Mansfield v. Edwards, 136 Mass.
The plaintiffs in their brief ask that, in case the decision upon the foregoing points is adverse to there, they may be allowed to amend the action by substituting for themselves as plaintiffs the persons to whom the payments were made. The law would allow an amendment of this kind to be made if justice requires it. Fitch v. Nute, 62 N.H. 700; State v. Collins,68 N.H. 46. If it appears that after such an amendment was made the defendants would not be liable in the action, it would be worse than useless make t. he amendment. Its only effect would be to prolong the action and subject the parties to expense — a result which justice will lend its aid to prevent. Therefore, in view of the plaintiffs' is deemed best to consider the questions bearing upon the defendants' liability, which have been argued by counsel on both sides, although a decision of them is not necessary for a disposition of the case.
The defendants say they are not liable because, never having
adopted the provisions of chapter 79, Public Statutes, relating to sewers, they had no power to construct the sewer in question. This position is untenable. Independently of those provisions, the defendants had power to construct sewers, so far at least they are needed to put and keep highways in suitable condition for public travel by carrying water and filth away from the highways. This power is incident to the power granted to towns to lay out, build, and repair highways. P. S., c. 40, s. 4, Cone v. Hartford,28 Conn. 363; Leeds v. Richmond, 102 Ind. 372, 2 Dill. Mun. Corp. (4th ed.), s. 805. It appears that several manholes are connected with this sewer for street drainage. The fact that house drains are also connected with it does not show that the sewer was not needed to render the highways suitable for the public travel. As the defendants have not adopted the provisions of chapter 79, they may not have authority to tax the persons whose drains enter the sewer their just share of the expense of constructing it, but no reason is apparent why they may not grant the privilege to such persons for a consideration agreed upon, or, if they see fit, without consideration. If towns are not charged with the duty of protecting and promoting the good health of the public, they are not prohibited from doing so to the extent of allowing the use of their appliances for the purpose, when such use will not interfere with the utility for which the appliances were designed.
The defendants further say they are not liable because they not authorize the building of the sewer, either by vote or by the action of their selectmen. But acceptance and use of the sewer by the defendants, with knowledge that they were expected to pay the cost of its construction, would be equivalent to original authorization in fixing their liability. Low v. Railroad, 45 N.H. 370; S.C., 46 N.H. 284. The negotiations between C and the selectman had a tendency to show that, in constructing the sewer C assumed to act in behalf of the defendants. If the payment for the pipe does not show original authorization, it tends strongly to prove the adoption of the sewer by the defendants, together with an understanding on their part that they were to pay for it. Besides these facts, it appears that they have connected two new sewers with it; and also that, through its connections with manholes, it is used for street drainage. Apparently, the defendants treat it as their property. In the absence of a special agreement with those who constructed it, the defendants would be liable to pay what the labor and materials put into it were reasonably worth. No special agreement is set up by them to relieve them from liability. There certainly is competent evidence from which it could properly be found that they have adopted and ratified the
acts of those who built the sewer, and so are liable to pay reasonable compensation for the labor and materials employed in its construction.
The defendants finally say that they are not liable because of the plaintiffs' voluntary interference and payment of the bills for the construction of the sewer. As above shown, the plaintiffs cannot recover in their own name for the money which they have paid to the contractor and others. But the plaintiffs' request for leave to amend raises the question whether they are entitled to be subrogated to the rights of the parties whose bills they have paid, and may in that way prosecute the claims in the names of those parties as nominal plaintiffs. "The doctrine of subrogation is not applied for the mere stranger or volunteer, who has paid the debt of another, without any assignment or agreement for subrogation, being under no legal obligation to make the payment, and not being compelled to do so for the preservation of any rights or property of his own." Sheld. Sub, s. 240. This is the rule, notwithstanding "the right of subrogation does not rest upon contract or privity, but upon principles of natural justice and equity." 61 N.H. 356. "The doctrine of subrogation is a pure, unmixed equity, and from its very nature could not have been intended for the relief of those who were in a condition and at liberty to elect whether they would or would not be bound." Gadsden v. Brown, Speer's Eq. 37, 41; Stevens v. King, 84 Me. 291, 293; Sandford v. McLean, 3 Paige 117, 122; Gans v. Thieme 93 N.Y. 225, 232; Shinn v. Budd, 14 N. J. Eq. 234, North River Co.'s Case, 38 N. J. Eq. 483; S. C, 40 N. J. Eq. 340, McNeil v. Miller, 29 W. Va. 480, 483; Bank of U.S. v. Winston, 2 Brock. 252, 254.
The plaintiffs, therefore, are not entitled to subrogation as a matter of right, nor unless there was an assignment to them by the creditors of the bills paid, or an agreement, express or implied, that the plaintiffs should be subrogated to the rights of the creditors. Such assignment or agreement may be made by parol. 2 Sto. Eq. Jur, s. 1047. The question then arises whether there was an understanding between the plaintiffs' treasurer and the creditors whom he paid, — whether their minds met upon the proposition, that the plaintiffs were purchasers of the bills paid, or were to take the place of the creditors and possess their rights against the defendants; or whether the understanding was that the bills were actually paid and discharged as against the defendants. "The question, as between payment and purchase, is one of fact rather than of law, to be settled by the evidence, largely presumptive, generally, in the case. It is a question of the intention of the parties." Wood v. Trust Co., 128 U.S. 416, 424; Stevens v. King, 84 Me. 291, 293; Neely v. Jones, 16 W. 579 Va. 625; Sheld. Sub., s. 248. It would not be sufficient if the treasurer alone understood that the bills were assigned to the plaintiffs, or that the plaintiffs were subrogated to the creditors' rights; the creditors must also have the same understanding. Receivers Midland R'y v. Wortendyke, 27 N.J. Eq. 658, 660; Coe v. Railway,31 N. J. Eq. 105, 134, 135.
There is evidence in the case having a tendency to show that the treasurer and creditors understood that the transactions between them were purchases of the bills, instead of payments. The fact that the money was paid as a matter of convenience to the creditors has this tendency. But this question of fact cannot be determined here. If the plaintiffs renew their motion for leave to amend in the superior court, this question, together with all other questions of fact bearing upon the exercise of the judicial discretion invoked by the motion, will arise and must be determined there. Upon the consideration of the motion it will be necessary to take into account the fact that the creditors' claims against the defendants are several and cannot be prosecuted jointly.
Exception overruled.
WALKER, J., did not sit: the others concurred.