Inhabitants of Webster vs. Morris Larned
It seems that an allegation, that L. falsely and deceitfully represented himself to the inhabitants of the town of W., that he was an agent of the town of D., duly authorized to make an agreement with the town of W. for the repair of a bridge which divided the two towns, is not supported by proof that L., as one of the selectmen of D., met the selectmen of W. and joined with them in an agreement with a third person to repair such bridge.
in an action by the town of W. against L., the declaration alleged that L. falsely and deceitfully represented to the plaintiffs that he was the agent of the town of D., and duly authorized to agree with the plaintiffs to repair a bridge across a stream which divided the said towns of W. and D., at the joint expense of said towns j and that the plaintiffs, relying on such representation, together with L., jointly employed S., as their agent, to repair said bridge, and agreed that they would jointly and equally pay him the expense of repairing it 5 that S. repaired the bridge, and demanded payment therefor of the plaintiffs, who paid him, and afterwards demanded of said town of D. to repay them one half of the sum thus paid to S., which said town refused to do, alleging that L. was never authorized to act as their agent in causing the bridge to be repaired: The declaration further averred, that L. was not in fact authorized by the town of D., as he represented himself to be 5 that the plaintiffs had been deceived and injured by his false and deceitful representation, and that he was answerable to them for the injury so caused: The evidence to support this declaration was, that L. and two of the selectmen of W. contracted with S. to'-repair the bridge, at the joint and equal expense of the two towns, and that this (if any) was the only act by which L. assumed an authority to bind the town of D. Held, that if this was a representation, that he had authority to bind said town, it was a representation made to S.; and not to the town of W.
*523Where a turnpike road is laid out over a town road, which crosses a stream, over which there is a bridge, and the town afterwards discontinues a part of the town road on each side of the stream, such town is not afterwards liable to repair the bridge, in consequence of voting to maintain the turnpike road, if the turnpike corporation will give up its road through the town 5 though such corporation afterwards votes to abandon and surrender its right and interest in its road, and immediately thereupon removes the toll gates from such road 5 and though such town afterwards once ex pends money in repairing the same road.
Trespass upon the case. The plaintiffs alleged in their declaration, that on the 4th of July 1837, French River was the boundary line between the towns of Dudley and Webster, and that across said river were a road and bridge, used by the public as a highway between said towns; that said bridge was out of repair; and that the defendant, well knowing the premises, falsely and deceitfully represented and pretended to the plaintiffs, that he was duly authorized by said town of Dudley to act as agent for said town, in causing said bridge to be repaired, and to make all agreements necessary thereto; and that he thereupon, pretending to act as such agent, together with the plaintiffs, who were induced thereto by said representations and pretensions, and relied thereon and believed the same to be true, jointly employed George B. Slater, as their agent, to cause said bridge to be repaired, and agreed that they would jointly and equally pay the expense thereof to him ; and that thereupon said Slater, as such agent, caused said bridge to be repaired, the expense whereof, to wit, $ 240-90, he afterwards demanded of the plaintiffs, who paid the same to him, and afterwards demanded of said town of Dudley to pay them one half of said sum; but that said town refused to pay the same, alleging that the defendant was never authorized by said town to act as their agent in causing said bridge to be repaired : And the plaintiffs averred that, at the time of making the representations and pretensions aforesaid, the defendant was not authorized, &c., whereby, &c.
The parties agreed that the court might decide the question of the plaintiffs’ right to recover, upon the following statement of facts: The town of Webster was incorporated, March 6th 1832, by St. 1832, c. 93, (7 Special Laws, 228,) being in part set off from the town of Dudley, by a line running along the line of French River. The bridge, mentioned in the plaintiffs’ *524declaration, is across said French River, and forms the communication between two villages, one in Dudley, and the othei in Webster. Oh the 4th of July 1837, the defendant and Henry Davis sent the letter, a copy of which is in the margin, to the selectmen of Webster, who received the same. There were then five selectmen in each of said towns.
In 1734, the town of Dudley laid out a road from Robinson’s Mills, which were one mile east of said river, to a point about two miles west of it, crossing said river at the bridge in question. There are in the town of Webster two or three roads, (besides the central turnpike, and said road laid out in 1734,) coming from different directions, and also two roads in Dudley, coming from different directions, which have been travelled in connection with said bridge, and have been in use beyond the time of the memory of witnesses. There is no record evidence of either of said roads, except of that laid out in 1734.
Soon after the selectmen of Webster received the aforesaid letter, two of their number and the defendant met at said bridge, and, after examining it, deemed it unsafe, and concluded to have some temporary repairs made on it, until they could rebuild it; and such repairs were soon after made. About the 1st of August, after the receipt of said letter, the defendant, with Henry Davis aforesaid, met two of the selectmen of Webster, and some other inhabitants of that town, at said bridge. Said Davis was there but a few minutes, and took no part in the proceedings. The defendant, on the part of the town of Dudley, and said two selectmen of Webster, on the part of that *525town, then contracted with George B. Slater to cause said bridge to be rebuilt, at the joint and equal expense of the two towns; and said Slater, pursuant to said contract, caused the bridge to be rebuilt, and called on the selectmen of Webster to pay the expense thereof; and they paid him. Said selectmen afterwards called on the selectmen of Dudley to pay half of said expense, which they refused to do. A meeting of the inhabitants of Dudley was held on the 11th of November 1839, under a warrant “ to see if the town” would “allow the town of Webster one half of the expense of building a bridge over the river; ” and at said meeting the town “ voted to pass over the article.” At another meeting of said inhabitants, held in March 1842, under a warrant containing, among other things, an article “ to see what measures, if any, the town will take in relation to a suit brought by the town of Webster against Col. Morris Larned,” (the present suit,) the town “ voted to pass over the article.”
In September 1826, the central turnpike was located over said bridge, from a point many miles east of said river, to a point many miles west thereof, and a toll gate was established on said turnpike road, about a mile west of said bridge. In September 1829, the town of Dudley voted to discontinue a part of the said road, laid out in 1734, between certain termini on each side of said river and bridge, “ except two rods,” in two different places, where two other roads crossed it. One of said roads, which crossed the road thus discontinued, was laid out in 1794, “ from the county road to the bridge ” in question.
At a meeting of the inhabitants of Dudley, held in November 1836, it was voted, on an article in the warrant therefor, that if the Central Turnpike Corporation would give up their road through Dudley, the town would maintain said road. On the 15th of April 1837, said turnpike corporation voted to abandon and surrender all their right and interest in their road, and that the towns through which it was located have liberty to locate a common highway over the same.
The franchise of said turnpike corporation was sold on execution, issued in favor of certain of the stockholders against *526the corporation, and was purchased by Samuel Slater and four others, members of the corporation, some or all of whom were then officers thereof, and continued to be, until said 15th of April 1837. Since that day, no act has been done by said corporation, or said purchasers of the franchise thereof, in regard to said road or the taking of toll upon it; nor has any toll been since taken or demanded. In June 1837, a surveyor of highways in Dudley expended a part of the money, raised by the town for the repair of highways, in repairing said turnpike road, after the toll gates thereon had been removed; and the said bridge has been constantly used by travellers as a part of the highway.
The defendant had no authority to contract for the town of Dudley respecting said bridge; nor had the selectmen of Webster any such authority, further than it resulted from their office of selectmen.
Washburn, for the plaintiffs.
The two towns, Dudley and Webster, were bound to support the bridge, even if no road was ever legally laid out, as they have held out the bridge as a public way. Rev. Sts. c. 25, <§. 1. Hobbs v. Inhabitants of Lowell, 19 Pick. 409. But the facts show a legal way ; first, by prescription. Steelman v. Inhabitants of Southbridge, 17 Pick. 162. Odióme v. Wade, 5 Pick. 421. Commonwealth v. Inhabitants of Newbury, 2 Pick. 51. Hannum v. Inhabitants of Belcher-town, 19 Pick. 311. Secondly, the vote of the town of Dudley to maintain the turnpike road as a town way, and the expenditure of money in repairing it, rendered the town liable to keep it up as a road. Rev. Sts. c. 25, <§> 26. The bridge existed before the road of 1734 was laid out, and was not discontinued by the discontinuance of a part of that road in 1829.
The defendant was not authorized to act as agent of the town of Dudley; as selectmen can act only by a majority. But the inhabitants of Webster ratified the act of their two selectmen, so that it is unimportant to inquire whether selectmen, as such, have authority to contract for building a bridge.
The defendant is liable to the plaintiffs for acting without authority assuming to have authority, as the plaintiffs have thereby *527sustained a loss. Story on Agency, §§ 261 —263, 264 & note (1) on page 262. Ballou v. Talbot, 16 Mass. 461. The law will imply a scienter, if necessary. Polhill v. Walter, 3 Barn. & Adolph. 114.
Barton, for the defendant.
The defendant acted as one of the selectmen, and made no representation that he was an authorized agent of his town. The plaintiffs could judge as well as he, as to his authority. Besides; the contract to rebuild the bridge was made with Slater by the selectmen of the two towns. The plaintiffs were no parties to that contract. If any misrepresentation was made by the defendant, (which is denied,) it was made to Slater, and not to the plaintiffs. And the plaintiffs, by volunteering to pay Slater, did not acquire a right to be reimbursed by the defendant. Snow v. Perry, 9 Pick. 542. Long v. Colburn, 11 Mass. 98. The defendant, if agent at all, was a public agent, and cannot be held personally. 2 Kent Com. (1st ed.) 494.
The facts do not show that there was any road across the river, except that of 1734, which was discontinued in 1829. The vote of the town of Dudley, in 1836, did not make the turn pike a town way. It could be made such only in the manner prescribed by the Rev. Sts. c. 39, §§ 16 — 21. Neither the turnpike corporation, nor the owners of the franchise, had power to give up the franchise, so as to exonerate the corporation from liability to repair the bridge. And that corporation was alone liable to keep the bridge in repair, at the timé when Slater rebuilt it.
Wilde, J.
This is an action upon the case for a deceit. The declaration alleges that the defendant falsely and deceitfully represented himself as an agent of the town of Dudley, and authorized by the said town to enter into a contract with the plaintiffs for the erection of a certain bridge over a river and road within said town, whereby the plaintiffs were induced to expend a large sum of money, which the town of Dudley, not being liable to refund, refused so to do. To maintain the action, the plaintiffs must prove that the defendant made the false affirmation or representation, as alleged in the declaration^ *528and that the plaintiffs, giving credit thereto, have incurred a liability whereby they have been subjected to a loss or damage. Tryon v. Whitmarsh, 1 Met. 1.
It is averred in the declaration, that the defendant falsely and deceitfully represented himself to the plaintiffs as the agent of the town of Dudley, and authorized by the said town to enter into a contract with the plaintiffs for the erection of the bridge mentioned in the declaration. The truth of this averment is denied by the defendant’s counsel, and is not, as it seems to us, sustained by the facts agreed. This, however, is a question of fact, which the court are not authorized to decide ; but as we are of opinion that, upon the facts agreed, a jury would not be warranted to find for the plaintiffs on this point, there seems to be no good reason for discharging the statement of facts upon which the parties have submitted the case to the decision of the court. It does not appear that the defendant represented himself as the agent of the town of Dudley, authorized by them to make the contract as alleged. He assumed to act as one of the selectmen of the town of Dudley; and if he mistook his authority, that would not support the charge against him of fraud or deceit, although it might perhaps make him liable on an implied promise.
Another objection, made by the defendant’s counsel, seems to us to be decisive in his favor. No representation appears to have been made to the plaintiffs, or to their agents, or selectmen. The defendant, on the part of the town of Dudley, and two of the selectmen of the town of Webster, on the part of that town, contracted with Slater to cause the bridge to be rebuilt at the joint and equal expense of the two towns. And this is the only act by which the defendant appears to have assumed an authority to bind the town; and if this is considered as a representation that he had authority so to do, it was a representation made to Slater, and he alone can maintain an action for the false affirmation. The letter, written by the defendant and Davis to the selectmen of Webster, is clearly no representation that they, or either of them, had authority to bind the town. And it is clear that the plaintiff town by *529paying Slater, did not acquire the right to maintain an action in their own name.
Another objection to the action remains, which we also think is well founded. From the facts agreed it appears that the town of Dudley was not authorized to build any part of the bridge in question. The road laid out in 1734 had been discontinued before the bridge was rebuilt, and the roads established by prescription do not appear to have crossed the river. But it does appear, that the Central Turnpike Corporation located their road over the said bridge; and that corporation, or those who purchased their franchise, were alone obligated by law to repair or to rebuild the bridge. We are therefore of opinion, that on no ground can this action be maintained.
Plaintiffs nonsuit