This is an action of contract. No question of pleading is raised, the case being submitted upon a statement of facts agreed. It is also stipulated that the court “ may draw such inferences from the facts stated as a jury would be warranted in doing.” At the trial in the Superior Court the plaintiff relied wholly upon the alleged breach of the agreement contained in the deed of the plaintiff’s testator to the defendant.
The judge refused to give certain rulings requested by the defendant, ruled that the facts agreed warranted a finding that the city had accepted the deed, and, having so ruled, found as a fact that there was such an acceptance.
It is not argued by the plaintiff that the deed was an agreement in writing within St. 1884, c. 226, although it would seem from its language that the statute must have been in the mind of the draftsman. Nor is this an action to recover back money paid upon an invalid assessment. The case rests simply and entirely upon the obligation assumed by the defendant by its acceptance of the deed. Unless there was such an acceptance the plaintiff has no case, and he so concedes.
Under these circumstances the second ruling requested was immaterial; and the third and fourth, so far as they stated the steps necessary to be taken as a preliminary to the right to recover back money paid upon an invalid assessment, were also immaterial, and, so far as they requested the application of those rules to this case, were erroneous.
The only real question is whether the evidence warranted the finding of acceptance. We are of opinion that it did. It is true that the street commissioners do not act as the agents of the city, and therefore their acts as such do not bind the city as their principal, nor are such acts to be regarded as evidence of its acceptance of the deed. But there was much evidence upon this question outside of the doings of the commissioners. After the deed had been executed and delivered to them they sent it to the city auditor, who received it and sent it to the registry of *463deeds to be recorded, and paid the record fee. It was thereafter returned to him and he has ever since retained it, and it is listed upon the records of deeds belonging to the city in the office of the auditor. It was recorded in April, 1894, more than six years before this suit was brought. It still further appears that at the time this deed was given it was, and long prior thereto had been, the custom of the commissioners to take such deeds, and that in dealing with this deed the usual course was.taken.
In March, 1894, the order for the construction of the street was passed by the commissioners, and the street must have been soon constructed, for in December, 1895, the betterment assessments were made.
This evidence is ample to warrant the finding that the taking of this deed was known to the city, and that it acquiesced in the acceptance of the same by its officers on its behalf. Having accepted the deed, the city was bound by its provisions, and the first ruling requested was properly refused.
Exceptions overruled.