172 A. 245 | N.H. | 1934
A large part of the agreed statement of facts is a summary of testimony. It would be unconsidered (Nashua Trust Co. v. Burke,
The agreement of the two commissioners, in the absence of the third member of the board, that the bill should be paid, furnishes no ground to meet the county's defence. By the findings no action was taken, and, as they are understood, the agreement was not with the city's overseer of the poor but only between the two commissioners.
Moreover, even if the agreement had been made with the overseer, no waiver would be chargeable to the county. The statutes make a difference between the organizations of boards of county commissioners and of selectmen. The former choose from their number a chairman and a clerk. The clerk, among his duties, is to keep a record of their proceedings. P. L., c. 38, ss. 1, 2. The design that the commissioners shall act as a body, is clear. While a majority may determine *567
board action, there must be such action. All members are entitled to be consulted on all matters and to have them discussed and considered in conference. Action is to follow meetings held or consultations had to pass upon its proposal. The structure is like that of the ordinary board of directors or managers. In the case of selectmen, "A majority . . . shall be competent in all cases." P. L., c. 47, s. 12. "The construction of this act . . . settled by usage is, that when there are two selectmen there is a legal board." Tyler v. Flanders,
The city's right to rely upon the practice of non-insistence upon the statutory requirements depends upon the nature and extent of the practice. Conceding that they may be waived and that the waiver may establish an estoppel (Lyman v. Littleton,
But whatever legal results might follow from the practice, it could not bind the county for matters outside or beyond its range. "A waiver by either words or conduct does not extend beyond their fair meaning." Daley v. Company,
The record is not clear in showing a finding that the delay in presenting the claim was due to the city's laches. But the conclusion reached avoids any occasion to construe it in respect thereto.
Case discharged.
All concurred.