The defendants’ treasurer, in September 1860, employed the plaintiff to negotiate the loan which they obtained from the Mount Vernon Bank in the latter part of the following November. But the defendants conferred on their treasurer no authority to act in their behalf in obtaining a loan, previously to their votes of November 6th and November 22d. Therefore, when he employed the plaintiff, in September, to negotiate a loan for them, he had no authority to employ him at their expense. And the question is, whether he had such authority under the votes passed by the defendants in November.^ It is the opinion of the court that he had not.
By the vote of November 6th the defendants instructed their treasurer to consolidate the town debt for ten yearsj provided the money could be obtained on- certain specified terms. It is very clear, we think, that this vote did not authorize him to employ a broker, at their expense, to ascertain whether thg money could be obtained on those terms.
*190If the treasurer had any authority to employ the plaintiff, at the defendants’ expense, that authority was derived from their votes of November 22d, and the law thereto applicable. But those votes authorized him to borrow money “under the direction of the selectmen.” Without their direction, therefore, he could not bind the defendants to pay for a broker’s services in borrowing money for them ; and no such direction is shown to have been given. Besides; the date of those votes, compared with the time when the defendants received the money from the bank, (the latter part of November,) leaves us in no doubt, and it was admitted at the argument, that the plaintiff’s services had been rendered, and the terms of the loan agreed on, before the passing of the votes, and that the last vote was passed for the purpose of showing, more explicitly than the previous votes, the precise terms on which the treasurer was authorized to borrow the money of the Mount Vernon Bank.
As it does not appear that the defendants had any knowledge, on the 22d of November, that the treasurer had assumed to employ the plaintiff in their behalf, their votes of that date cannot be held to have ratified that employment.
We cannot sustain the first instruction given to the jury, viz. that if the defendants authorized their treasurer to procure the loan from the Mount Vernon Bank, they would be bound by any contract made by him in employing a broker to negotiate the loan, if such employment was reasonable, and also according to the usual and ordinary course of business in procuring loans of the amount and character of the loan in question. Whatever may be the law concerning usage, it is manifest that it cannot be applied to this case, which is unlike any other that has evei been the subject of litigation in this commonwealth. And it does not appear, nor has it been suggested in argument, that any evidence was introduced which tended to prove a usage for a town agent, under an appointment like-that of the defendants’ treasurer, to employ a broker.
Nor can we sustain the second instruction that was given to the jury. As the treasurer had no authority to employ the plaintiff, at the expense of the defendants, it is immaterial *191what was the belief of either or of both of them as to such authority.
The third instruction was correct in legal doctrine, but was inapplicable to the case on trial, and did not warrant the verdict Which was returned.
We incline to the opinion that the instructions, for which the defendants’ counsel asked, should have been given. They seem to us to have contained, in substance, sound legal positions.
In the present state of the case, it is immaterial whether the offered testimony of the president of the Bank of the Republic was rightly or wrongly excluded.
Exceptions sustained.