The doctrine established in Hayward v. Leonard, 7 Pick. 181, that a party may recover for the value of work done under a special contract in the erection of a structure fixed to real estate, though the contract has not been fully performed, provided it has been done in good faith and is beneficial to the defendant, has been applied by the court to work done under contracts with towns in the construction of highways, under orders of the county commissioners. Snow v. Ware, 13 Met. 42. Walker v. Orange, 16 Gray, And the application of the rule to the plaintiff’s claim under his second count was correct. In the latter case, the distinction is stated between this class of cases and the case of McCarren v. McNulty, 7 Gray, 139.
But the ruling that if the highway “ was ordinarily used for travel by the public, between the 4th of August and the 4th of September, with the knowledge and consent of the selectmen or the highway surveyors, this was a fact from which it was competent for the jury to infer that the town had adopted and accepted the road,” was incorrect, so far as it related to the knowledge or consent of the highway surveyors. These officers had nothing to do with the adoption or acceptance of the way. . Their duties related merely to existing ways ; and as they had no notice from the plaintiff on the subject, the only inference they could draw from the fact that the highway was kept open, so that any one who pleased might travel over it, would be that the plaintiff was *124keeping it open for his own convenience in finishing it, the time for completing it not having at that time elapsed. The selectmen were the agents of the town for making the contract with the plaintiff, and for accepting the work ; yet the ruling would enable the plaintiff to bind the town to its acceptance by the implied assent of highway surveyors, though it should be proved that the selectmen had refused to accept it, and given notice of their refusal to the plaintiff.
It had not been accepted by the county commissioners, for they can only act together, and by a majority vote. Merrill v. Inhabitants of Berkshire, 11 Pick. 273.
We think also that the clause in the specifications of the commissioners referred to, viz: “ the gravel on the whole distance, or any part thereof, must be on a regular inclined plane of not more than twelve inches in twenty feet,” was not rightly interpreted. Probably the word “ gravel ” is a clerical error, and should be “ grade.” ■ But as it is in the copy annexed to the declaration without change, its meaning is the same; and it requires more than that the road shall be so worked that a jury may consider it safe and convenient. For a much higher grade than this may be safe and convenient; and the commissioners have exclusive authority to determine what the grade shall be.
Exceptions sustained.