The opinion of the Court, after a continuance nisi, was drawn up by
Weston C. J.The counsel for the defendants, having been employed by their general agent, was sufficiently authorised to appear in their behalf, if the objection to his authority had been taken at the first term, as it should have been.
There has been no- evidence of an express contract, upon which the action could have been founded. The letter of March, 1832, from the assessors of the plantation to the plaintiff, contains only the intimation of an opinion, as to the course, which it was most expedient to pursue, in the appropriation of the fine. If that had been otherwise appropriated and expended, as the jury have found, there was nothing in the letter, which has the slightest bearing to authorise the plaintiff to build the bridge, or to pledge to him therefor the credit of the plantation.
If there was no express contract, is one to be implied from the facts in the case 1 It appears that the assessors visited the bridge from time to time, while it was building. If they had been authorised to cause a bridge to be built, these acts of inspection, unaccompanied with any explanation on their part, would have been strong evidence to charge the plantation. As the assessors were their prudential officers, an implication to the same effect might have been justified, if no such authority had been specially confided to them. But they had previously explained themselves. Their letter to the plaintiff had in effect advised him, that if he proceeded, he must look to the fine for his reimbursement. The plaintiff seems unaccountably to have cherished a belief, that the fine might be enforced for his benefit, even after a warrant of distress therefor had been refused by tire Common Pleas. That he relied upon that source is manifest from the application, which he subsequently made to this Court, for a mandamus to the Common Pleas, to cause such a warrant to issue. He had, before he commenced the work, informally met a majority of the inhabitants of the plantation, who *25had insisted that he should not proceed, to bring a charge upon them; and he was forbidden to do so by one of the assessors. His pertinacity in going on, not only without authority, but against their protestations, seems to exclude the implication of an assumpsit on their part. Nor is there reason to believe that he expected to charge them on a contract, express or implied. He was looking to another remedy, the fine, which has failed him.
The counsel for the plaintiff has cited those cases, upon the authority of which, he claims to prevail. In Hayward v. Leonard, 7 Pick. 181, the Court say, “we mean to confine ourselves to cases, in which there is an honest intention to go by the contract, and a substantive execution of it, but some comparatively slight deviations, as to some particulars provided for.” In such cases, they were disposed to sustain an action, where the real estate of the defendant had been rendered more valuable by the labor and materials of the plaintiff. Here there was no contract, and the plaintiff proceeded against the will of the defendants.
In Hayden v. Madison, 7 Greenl. 76, there had been a contract to malee a piece of road, the greater part of which was completed. One of the conditions was, that the town should pay half the price agreed, when the road was done. A small portion of the distance was not made, which the town caused to be completed, and paid the plaintiff the one half of his claim. And this was principally relied upon by the Court as a waiver of strict performance, and he was permitted to recover the other half, deducting the expense incurred by the town in completing the road.
The principle stated to have been decided in the case last mentioned, by the late Chief Justice, in Abbott v. Hermon, 7 Greenl. 118, may be laid down more broadly, than that case will warrant. In the case last cited, there had been a contract by the plaintiff to build a school house. It was nearly but not quite, completed ; but it had been used for two successive winters-, by the direction of the district school agent, for the district school. This was holden to be such an acceptance of the house, as rendered the district liable to the plaintiff.
If a man will voluntarily build a house, or make any other erection upon the land of another, against the will and against the protestations of the owner, although his estate may be rendered more *26valuable by the erection, we have been referred to no case, which decides that he is under obligation to pay for it; at least until he has manifested an unequivocal act of acceptance.
It has been urged, that a promise to pay for the bridge, may be implied from the use made of it by the defendants'. It appears, that the plaintiff having erected his bridge, where a ferry had been established before, it had been passed over by the inhabitants of the plantation and others. The bridge was doubtless more convenient for the citizens than the ferry; but it does not appear from the case, that the defendants were under obligation to build the bridge. The establishment of tíre ferry would rather justify a different inference. In Hayden v. Madison, where the benefit to the town was manifest, the use of the road by tire public, was considered as very equivocal evidence, upon which to charge the town; and we cannot regard it here as sufficient to sustain the action. As to what was done by the surveyor, that having been since the action, can have no effect upon it, if it would have had any, if it had been before, which is denied by the defendants.
According to the agreement of the parties, the verdict must be set aside, and a nonsuit entered.