The decision was made at September term 1846.
Shaw, C. J.We do not see how the plaintiff has avoided the force of the suggestion that it does not appear that he had worked out the whole of his highway tax in February 1843. Suppose the evidence offered by him shows that the tax bill had been wholly collected at that time ; yet it does not appear that the amount had been expended, or that he had not money in hand. But we lay no great stress on this, because we think there is another point quite decisive. The rights and powers of surveyors of highways are regulated by statute, and a surveyor cannot, when he has expended his tax, proceed and do work on the roads, at his discretion, and charge the town. By force of the statute, he may bind the town, in case of deficiency either of labor or money, in the amount appropriated for the repair of highways, by his contract with a third person, to the amount of ten dollars. The words are, “ he may employ any persons to make such repairs, and the persons so employed shall be paid therefor by the town; provided that the sum so expended by any such surveyor shall not exceed ten dollars.” Rev. Sts. c. 25, § 13. By this provision, it seems to us quite clear that his whole authority is, *525to bind the town by his contract, he acting solely as their disinterested agent. And it appears to us that there are good reasons for this. If he employs another person, on the authority of the town, he pledges his official responsibility for the existence of the exigency, and the fairness of the price; he acts exclusively for the town, and they have the benefit of his disinterested judgment and official sense of duty as their agent.
It may be proper to add, that this provision of the revised statutes, authorizing the surveyor to bind the town by his contract, to the extent of ten dollars, has altered the law that was in force at the time of the decision of Loker v. Inhabitant of Brookline, 13 Pick. 350. Nonsuit to stand.