delivered the opinion of the Court. Several questions have been proposed and discussed in the present case, which we think it is not necessary to consider in deciding it'. The Court are of opinion, that the plaintiffs are not entitled to recover; and one objection decisive in their minds is, that in making the contract with Bunker, and especially in paying him according to that contract, the plaintiffs wholly exceeded their authority, and did not thereby become entitled to maintain an action as upon an implied contract against the town.
After the road was laid out by the county commissioners, the location, direction, width and mode of making, being all determined by the act and order of the commissioners, the town, pursuant to law, were required to make it, and a time was allowed for that purpose. It was to provide for the performance of this public duty, imposed on the town by law, that the inhabitants were warned to meet on November 12, *2771832, to choose a committee “ to let out the building of a road lately laid out by the county commissioners ” &c. And the vote of the town thereupon was to choose Keyes and Hamlin, two of the plaintiffs, together with Samuel Fletcher 2d, a committee to let out the road located, &c. and superintend the same.
We think the plain and obvious construction of this vote was to confer a special authority on the committee, to enter into a contract with some person in the name and behalf of the town, to have such a road constructed, as the town was bound by law to make, that is, such a road as the competent officers of the public for that purpose, had required them to make, and to superintend the work and the execution of such contract in its progress. And so it is obvious that they themselves understood it, because two of the committee, a majority, in the name and behalf of the town, proceeded to enter into a contract with the other member of the committee, to make the road therein described. It is true that in many respects it was to be wider, more level, and more expensive, than the road as laid out by the commissioners. But the stipulations and engagements, in this contract, were made by and with the town, as a party, and the committee profess to act merely as agents. Whether this contract would have been binding on the town notwithstanding the objections, that it was not made on behalf of the town by all the committee, and that one of the committee could not be a contractor, had the town elected to repudiate the contract, is immaterial to this inquiry. The plaintiffs, Keyes and Hamlin, are not at liberty to say, against their own act, that the contract was void ; and as the ground of objection is a want of authority, the contract being made in the name of the town by agents professing to be authorized, it was competent for the town to adopt and treat it as their own, as if it had conformed in all respects to the origina authority ; it was for them to decide whether they would do so, and it was not competent for the committee to set up the want of authority in themselves to make the contract upon the terms or. in the form, in which it was made in behalf of the town, so as to bind them in their corporate capacity. Then, as this contract embraced the whole subject matter of the vote *278under which the committee was appointed, it was a complete execution of their power. If Fletcher did not execute his contract according to its terms, the power and duty devolved upon the town, as the contracting party, to insist upon or waive the execution of the contract, or to accept a part-performance for the whole, or to enforce the forfeiture, according to their views of justice and expediency ; and it was not competent to the former committee, without a new authoi’ty, to enter into a new contract, for the completion of what had been left undone by Fletcher.
But there is another objection, in our view, equally decisive against the right of the plaintiffs to recover in this action.
It appears by the contract made with Bunker, taking it in connexion with the contract with Fletcher, which is made part of the case, that the first contract provided for a road, to be made with a wider travelled path, with the angles of elevation smaller, and in these respects more expensive, than the road contemplated and ordered by the county commissioners, that Fletcher executed his contract to the extent, as he contended, to which he was bound to do it, and there stopped. This the other members of the committee denied. And they therefore proceeded to enter into a new contract with Bunker to work by the day, to complete what Fletcher had left unfinished, and to' make the road conformably to what was contemplated in the contract with Fletcher. And it is for the money paid by the plaintiffs to Bunker upon this last contract, that the present action is brought. Now the defence of the town to this claim is, that supposing the original authority of the committee was, to make and finish the road, as the commissioners ordered it, and for that purpose to make contracts toties quoties, till the work should be completed as thus ordered, and that no objections could be made to the form in which they had contracted with Fletcher, still, that as in making the contract with Fletcher they stipulated for a better and more expensive road than that ordered by the commissioners, they exceeded their authority to the extent of such increased expense, and as the contract with Bunker was to do what Fletcher had left unfinished, it was alike an excess of authority, and having themselves paid for this work, the town was not bound to reimburse them.
*279On the part of the plaintiffs it is contended, that it is con> petent for a town to make a better, more complete, and more expensive road for the town, than the commissioners have thought it expedient to order, and as such a road has been made in the present case, the town have the benefit pf it, and are bound in equity as well as in law, to pay for making it.
Whether, when the county commissioners have laid out a f .blir. highway, for the common convenience of all the inhabtants of the Commonwealth, which it is by law the duty of a town as such to make, the town can by a formal vote, make a more expensive road than required by the commissioners, is a question which does not necessarily arise in this case, for reasons to be hereafter staled. The construction of the road, as ordered by the proper tribunal, the county commissioners, is a public duty of towns, and it is to be borne by an equal tax on the inhabitants. But that a town, by the vote of a majority, can go beyond that, construct a paved road, for instance, or other expensive improvement, however useful or ornamental, and assess the expense upon the town, by a tax upon all the inhabitants, as well those who dissent as those who assent to it, is a proposition, which for myself I should pause upon long, before acceding to it. But whatever might be the authority of a town in such case, acting by an express and unequivocal vote, we perceive no ground for maintaining that the town did so act or vote in the case before us. The road, for the making of which the committee were authorized to contract, was the road laid out by the commissioners. By this express reference to the act and order of the commissioners, that act describes and limits the authority of the committee of the town. The act of the committee, therefore, in making provision for a more complete and expensive road, was so far an excess of authority, and it follows as a necessary consequence, that the contract with Bunker, to make good the deficiencies of the first contract, was founded in a like excess of authority, and therefore imposed no obligation upon the town.
Without considering several other questions which were discussed at the argument, we are of opinion, that the plaintiffs are not entitled to recover, and that the nonsuit must stand