Emerson v. Inhabitants of Newbury

30 Mass. 377

• Court: Massachusetts Supreme Judicial Court
• Decided: November 15, 1832
• Status: Published

Opinion

Wilde J.

delivered the opinion of the Court. The plaintiff’s demand is founded on the 4th section of St. 1786, c. 81, which provides £< that when the sum appropriated and assessed for the repair of the highways and town-ways, in the limits of any particular surveyor, shall not fully answer, or be insufficient for that purpose, it shall be lawful for the surveyor, with the consent of the selectmen, or the major part of them, where such deficiency happens, to employ such of the inhabitants of the town, upon the repair of the ways in his limits, as shall make up that deficiency; and the persons thus employed shall be equitably paid out of the town treasury therefor.”

There was no evidence produced at the trial, that the plaintiff, who was one of the surveyors in the defendant town, made any application to the selectmen before the work was done ; but it was proved that they promised to pay for it afterwards, and it was also proved that the work and expenditures claimed were reasonable and necessary, and upon a Sudden emergency.

On this evidence the jury were instructed, that the subsequent promise and ratification was equivalent to a previous consent of the selectmen; and we consider this instruction as manifestly correct.

The statute does not require in terms, that the consent of the selectmen should be first obtained before the work was to be undertaken and done; it must be done with the selectmen’s consent; but whether the consent be given before or after the repairs are made, would seem to be quite immaterial. The section is a beneficial provision for the public safety and convenience, and is to receive a liberal construction. And besides, no principle is better settled than that delivered to the jury, that the subsequent ratification and adoption of an act, after it is done, is equivalent to a previous consent thereto. First Parish in Sutton v. Cole, 3 Pick. 246 ; Shaw v. Nudd, 8 Pick. 9.

We are also of opinion, that the selectmen were not competent witnesses, as the verdict might be given in evidence against them, to show the amount of costs recovered in this suit, for which, upon the facts reported, they would be bound to indemnify the town, after the vote not to employ any agent or agents to defend this action.

We think it also very clear, from the results of the trials in the Court of Common Pleas and in this Court, that the plaintiff had a reasonable cause for appeal, and that he is entitled to a certificate so as to authorize the taxation of his full costs

Judgment on the verdict.