Hoyle v. Town of Putnam

Carpenter, J. This is an action to recover damages for an injury occasioned by an alleged defect in a highway. The statute of 1874 provides as follows: “ See. 1. Whenever any person shall receive injuries by reason of any defective road or bridge, written notice of such injury, and of the time and place where it occurred, as nearly as it can be ascertained, shall within sixty days thereafter be given to some one of the selectmen of the town or the clerk of the city or borough where the injuries were received. “Sec. 2. No suit shall be maintained for such injuries unless such notice is given,” <fcc. Towns are liable in this class of actions only by force of the statute. The notice required by the act of 1874 is in the nature of a condition precedent, and would seem to be indispensable to the right of maintaining an action. At least it may well admit of doubt whether an action existing wholly by statute can be maintained if some statute requisite has not been complied with. If not it is difficult to see how the town even in its corporate capacity can waive the requirements, and by its own act confer a right of action where the law confers none, and thereby subject the property of the minority, or of non-residents, women and minors, who have no voice in town affairs. If the town has no such power certainly its agents, the selectmen, can not have it. But however this may be, we are clearly of the opinion that there was no waiver binding upon the town in the present .case. It appears from the motion that no written notice was given; that the first selectman, who was ex-officio town agent, [62] liad a conversation with one of the plaintiffs and with others about the accident, and expressed a willingness to do what was right about it, and a desire that no expense should be made. There was no conversation with the other two selectmen, and it does not appear that they knew any thing of it. Now if we concede that the selectmen as a board had legal power to waive the notice, the action of one alone, however explicit, is insufficient. It requires a majority of the whole acting as a board, or at least a majority of a quorum. The fact that the selectman happened to be ex-officio the agent of the town, does not affect the case. As such agent he would doubtless have power to appear and prosecute or defend suits, and transact much of the formal and ordinary business of the town; but the statute making him agent was not intended to authorize him to waive the legal rights of the town in an important matter like this. The court below very properly instructed the jury to return a verdict for the defendants, and a new trial must be denied. In this opinion the other judges concurred.