The opinion of the Court was delivered by
WestoN C. J.In pursuance of a regular town meeting, held April third, 1837, the warrant for which, among other things, contained an article, “ to see what method the town will take respecting the surplus money,” the inhabitants of Cornish voted that the defendant be appointed agent to receive the surplus revenue money, and by the same vote, they authorized him to purchase therewith bank shares, at par or less. This vote was warranted by the article, under which it passed. Tn virtue of it, the defendant received the first and second instalments of the surplus moneys to which the town was entitled, and on the second day of May, 1837, he invested the proceeds, with the exception of a fraction, which was not sufficient to purchase an additional share, in the stock of the City Bank in Portland.
Having received and disposed of the money, as authorized by the vote, he thereby discharged himself from responsibility, unless he has violated any legal agreement, by which he bound himself to purchase of them the stock in question. The town claim to charge him upon this ground. And they rely .upon certain declarations and propositions, made by him in town meeting. Tire first was at the meeting held on the third *190of April, 1887. He then recommended the purchase of bank stock, as a safe and profitable mode of investment; and went so far as to say, that when the town became dissatisfied with having it in bank stock, he would take it off their hands, or procure some other person to do it. If a negotiation or agreement of this kind was warranted by the article, under which they were acting, it was not accepted by the town. No agreement was then made to this effect, binding upon either party.
On the second day of April, 1838, another town meeting was held, in virtue of a legal warrant, the seventh article of which was, “ to see if the inhabitants will divide the surplus money, belonging to said town, according to the census taken in 1837.” When this article was under consideration, the defendant is proved to have said, that if the town would wait ¡upon him, until October then next, he would pay over the money, and take the bank' shares to himself, with six per cent, .on the money he had received. Thereupon the town voted in effect to accept this proposition, which was recited in their vote. If the inhabitants then assembled, were duly authorized to bind the town, the terms of the agreement, and the assent of both parties, are sufficiently proved. But with a view to a just limitation of the powers of a town at their public meetings, it is provided by law, that “ no matter or thing shall be acted upon, in such a manner as to have any legal operation whatever, unless the subject matter thereof be inserted in the warrant for calling the meeting.” Statute of 1821, c. 114, ,§, 5. Now whether this agreement was provident or improvident, beneficial to the town or otherwise, there was no article in the warrant calling that meeting, by which it was authorized. If the operations of the bank had been ever so profitable, or however much their stock might have appreciated, the defendant had no remedy to enforce the agreement, indicated by a vote of the meeting, not legally binding upon the town. If the town were not bound, the defendant could not be, for the consideration, for the agreement he proposed was an agreement on their part. The defendant offered to be defaulted, for the amount by him received, over what was invested in the purchase *191of the bank stock. The opinion of the couit is, that upon the facts reported, the claim of the plaintiffs, beyond that sum, has not been sustained ; and the default is to stand, as upon the defendant’s offer.