The question arising in this case is, whether the plaintiff was properly employed by the agents of Goffstown, either to make the repairs of the highways, or to survey the lumber, so as to entitle him to charge his services to the town. It appears that he was directed to make the repairs by one only of the selectmen, and without the express assent of the others. Are the facts presented in this case such as authorize selectmen to repair highways, and warrant either one or all of them in employing the plaintiff?
The Revised Statutes, ch. 55, sec. 1, provide that “ every town shall raise such sum of money as they may judge necessary for making and repairing the highwaysand
It is evident, then, that selectmen have no genei’al authority to repair highways at the expense of the town, only in specified cases and under peculiar circumstances. We are of opinion that the selectmen are authorized, only in the event that all the money raised in the town has been expended to make repairs at the town’s expense. Such seems to be the policy of the statute.
In this case the facts do not show that the money raised by the vote of the town had been first expended. Accordingly, the plaintiff is not entitled to recover for his services in repairing the highway.
Was the plaintiff duly employed to survey the lumber, and to charge the same to the town ? It appears that he was employed by a surveyor of highways to survey the lumber necessary for the rejeairs. Chapter 55, section 14, provides that “ surveyors of highways may purchase all such timber, plank, and other materials, as are necessary for repairing the highways and bridges in their respective districts, at the cost and charge of the town.” As incident to that authority, it seems very clear to us that they have the power to cause the timber to be surveyed, as the ordinary means of ascertaining its value. The plaintiff, then,
But it is objected, that unless it appear that the plaintiff' demanded payment for his services of the selectmen, or that he had given them notice of his claim, the action is premature and can not he maintained. But we are aware of no principle of law requiring such demand or notice of the agents of a town more than of individuals.
The plaintiff is entitled upon the facts in this case to recover for his services ; and as the judge who tried the cause decided differently, the verdict must be set aside and a
New trial granted.