The opinion of the Court was drawn up by
Tenney, C. J.This action is upon an instrument purporting to be signed by two of three selectmen of the town of Guilford, in the following terms: —
“$100, “No. 157.
“Pay to W. W. Harris, or bearer, one hundred dollars and no cents, out of the town funds, given for his claim for damage, in building the bridge at Guilford village, payable in six months from date, with interest.”
It appears, that the other selectman declined to sign the order.
The building committee, chosen to make contracts for the erection of a bridge at Guilford village, on Oct. 11, 1854, contracted with Isaac Wharff, to build the abutments and pier for the bridge, and on the same day made an agreement with W. W. Harris to construct and put up the superstructure of the same bridge. And, on August 10, 1855, said Harris contracted with the plaintiff to do work, which he had agreed with the town to do. The work under these several contracts was to be performed to the acceptance of the building committee, at certain specified times.
The bridge was accepted by the building committee on December 6, 1855, and the bill was made out by Harris, and paid to the full amount in behalf of the town on the same *139day. At the time of the settlement and payment, he did not give a receipt in full but on account of building the bridge. He declined to give a receipt in full on the ground, as he stated, that the plaintiff might claim damage of him; and if he did, he thought the town ought to pay him something. This statement was made anterior to the time when his receipt was given to the building committee, and was not repeated at the time.
At the time the order was drawn, it was signed by Isaac Weston, one of the selectmen, under the promise of Harris to execute a written agreement to return the order, or pay the amount of it, if the town would not allow it. Such agreement was written by Hudson, the other selectman, whose name is signed on the order, before the order was drawn; and Hudson and Harris went aside at the place where the papers belonging to the town were kept, for the purpose of having the agreement executed by Harris. Weston supposed it was executed, and was to be left there, with the other papers of the town; and he was induced to sign the order, on the promise of Harris, that the agreement, which was written was to be executed at the same time. It appears that Harris never signed the agreement on his part, but destroyed or retained it.
The delivery to Harris of the order was to be a part of the same transaction with his written agreement, to return it, if not satisfactory to the town, and the possession of it, by him, was unauthorized by a majority of the selectmen, and cannot be treated as valid in the hands of Harris, unless the town have in some way approved the delivery, independent of the promise to execute the agreement on his part. It does not appear that the town have ever given such approval, but the defence of the suit shows the contrary.
Does the plaintiff stand in a better position to prosecute this suit than would Harris, if it had been commenced in the name of the latter ?
The order shows upon its face the consideration thereof, and the plaintiff knew, before he received it, that there was *140a condition about the settlement. There was litigation between him and Harris, in which he claimed damage, among other things, on account of being delayed in the prosecution of the work under his contract with Harris. His claim was the subject of a suit in court, and it was referred to referees. An award was made in favor of the plaintiff for the sum of $312, in damages, $36 of which was on account of the interruption in the performance of the contract with Harris, and $70,02, costs. The report of the referees was accepted at February term, 1857, and a discharge upon the docket signed by the plaintiff, after the final adjournment of the Court, on March 7, 1857. He took the order of Harris, on February 13, 1857, and gave his receipt therefor, before the final settlement of the matter. The final settlement was on March 24, 1857, when Harris gave the plaintiff a writing, under a copy of the order, stating that the original was the order in suit; that the town of Guilford is liable for the sum named therein; and, if the plaintiff should fail to collect the' same, he will pay the full amount thereof with interest, together with such costs as he shall incur in a suit to enforce payment.
The receipt given by the plaintiff for this order is not in the case, and, of the tenor thereof we have no knowledge. It is in testimony, that it was taken as an absolute payment. This, however, is not inconsistent with an agreement to guaranty the payment, on a settlement of the judgment in favor of the plaintiff against Harris, on account of which it was received.
From all the facts disclosed in the report of the evidence, we are not satisfied that the plaintiff received the order for value, in the ordinary course of business, ignorant of its consideration and the circumstances, to some extent at least, under which it was given. He must be treated as having been admonished, that a defence would probably be set up, when he became the absolute owner of the order.
Nonsuit to stand.
Appleton, Gutting, Mat, Davis, and Kent, JJ., concurred.