.Case to recover damages for injuries to a traveler’s horse, suffered-from a.defective highway. Verdict for plaintiff for $144.97.- The defendants have exception to the instruction of the presiding justice, upon evidence that made the same pertinent: That if the municipal officers .of defendant town, or a majority- of them, gave a written appointment to one Merrill, *347signed by a majority of them, as highway surveyor for the road district where the injury was received and he took the surveyor’s book and performed the duties of surveyor and caused the taxes to be worked out during tbe season of 1895, and until after the accident occurred, he would be a highway surveyor de facto within that district, and that twenty-four hours actual notice to him prior to the injury would bind the town.
This instruction was well enough, for Merrill', apparently clothed with authority, performed the functions of the office, and the fact that he had not been sworn could make no difference. He was an officer de facto. That is, acting under color of authority, and so far as the public or third persons are interested his acts were just as valid and binding as if he had been an officer de jure: Plymouth v. Painter, 17 Conn. 585, and cases cited; Smith v. State, 19 Conn. 493. In Woodbury v. Knox, 74 Maine, 462, a school agent, chosen at a meeting that had not been duly notified, and not sworn, employed a teacher, and it was held that his act was binding upon the town. See also Brown v. Lunt, 37 Maine, 423; Belfast v. Morrill, 65 Maine, 580. In Woods v. Bristol, 84 Maine, 358, there was an attempt to usurp an office, not to fill one under color of right. Bunker v. Grouldsboro, 81 Maine, 188, is not in point.
The jury found a verdict for the plaintiff. It was none too large. The issues of fact were stoutly contested. A careful reading of the evidence does not show that the verdict is wrong. Difference of opinion may well exist as to its correctness. It is a verdict of the jury, and commands our respect. We are not disposed to overturn it.
Motion and exceptions overruled.