Rollins v. Town On Chester

Sargent, J.

Surveyors of highways have a right to purchase all such timber, plank and other materials, as are necessary for repairing highways and bridges in their respective districts at the cost and charge of the town. Rev. Stats. ch. 55, sec. 14; Brown v. Rundlett, 15 N. H. 360; Palmer v. Carroll, 24 N. H. 314; Ball v. Winchester, 32 N. H. 435.

But while the surveyor may do this, it is not intended that he should expend the labor necessaiy to work the timber, &c., into a bridge, or that he should work the other materials into a highway or bridge at the expense of the town, but he must do this with the money in his hands or the labor which he is entitled to command upon his warrant as surveyor. Because it is made the duty of selectmen, when the taxes in any district, from any unforeseen accident shall be found insufficient, to order any surveyor to cause the taxes then due upon his list to be worked out in said district, and if the taxes then due shall be insufficient, the selectmen shall cause the road or bridge affected by such accident, to be put in repair at the expense of the town. But surveyors are only au *414 thorized to procure the materials at the expense of the town, and then with the amount of taxes committed to them, they are to go on and repair the highways and bridges in their district, and if that is not sufficient, the selectmen may order any other surveyor to work his taxes then due, in said district, and if the taxes then due shall be insufficient, they (the selectmen) may repair at the expense of the town.

It has been held in such case that the selectmen have no authority to repair at the expense of the town until the money raised by vote of the town for that purpose has been expended. Wells v. Goffstown, 16 N. H. 53. The farthest that surveyors hare been allowed to go in purchasing plank and lumber at the expense of the town, was to hold that they might have such lumber surveyed at the charge of the town as a proper means of determining its quantity and value. Wells v. Goffstoion, supra. But it has never been held that a surveyor might charge his services in procuring the materials”, or his labor in drawing them, or working them into a bridge or highway, to the town. The only seeming authority for such a holding is a dictum of Eastman, J., in Patterson v. Colebrook, 29 N. H. 105, where he expresses a doubt whether if the only defect in a highway were a hole in a bridge, the surveyor would not be bound to repair it, on the ground that he was authorized to purchase lumber, plank, &c., at the expense of the town. But we think there was no foundation for this doubt, because the mere purchase of plank, and having them surveyed, would not mend the hole in the bridge, since labor would jorobably have been necessary for that purpose, both upon the bridge and upon the plank, in order to use the materials thus purchased for repairing the bridge. But such servicés cannot be rendered or procured at the charge of the town.

The fact that complaints had or had not been made of the condition of the road, had nothing to do with the fact which was attempted to be proved, viz., that the repairs were necessary. This could only be shown by showing the actual condition of the road at the time.

The vote of the town of March, 1863, was properly rejected. The vote was void, there being no article in the warrant authorizing it, and besides if there had been, the vote only amounted to an offer to comjnomise the suit which was not admissible as evidence. The vote was after the suit was commenced.

So, also, of the offer by Kent. His appointment as agent to prosecute and defend suits gave him no authority to accept or ratify the plaintiff’s acts, and besides the offer which he made was only an offer to compromise the suit, or the claim, and would have been inadmissible, even if Kent had had authority to settle the same, which he had not. It does not appear when this vote was passed or this offer made.

The vote in 1864, though long after the suit was commenced, by which Melvin was authorized to settle all cases where the town was a party, to the best of his ability, was perhaps properly enough submitted to the jury to be considered and weighed by them as an act of the town tending to show a ratification or acceptance on the part of the town ; but that was all it could be claimed to be, even admitting that the article in the warrant was such as to authorize the vote that was passed. *415 The ruling was at least sufficiently favorable to the plaintiff, and he cannot complain of it.

The vote of 1862 was not authorized by any article in the warrant, and was, therefore, of no account, and was properly rejected.

But the evidence introduced by the defendant of the conversation between the plaintiff and the selectmen of the town, in December, 1861, or February, 1862, in which it was proved that the selectmen denied the liability of the town, was, we think, clearly incompetent. The party cannot thus make evidence for himself by putting in his own statements or those of his agent, in his own favor. But it seems that all that was said by the selectmen was that the town did not owe the plaintiff and had not employed him. That is the same ground defendants now take and have always taken. They are here in court saying the same thing. It is just what they would have been expected to have said, unless they admitted the liability of the town which would have been evidence for the other side, if the selectmen had any authority in the matter. We cannot see that the evidence was in any way material, or could bear in any way upon the case. And though clearly incompetent, we think it immaterial, and that the verdict should not be disturbed oh that account.

Judgment on the verdict.