
    Isaac Damon versus The Inhabitants of Granby.
    A committee chosen by a town "to procure a master builder and superintend the building of a meetinghouse for the town,” with authority to borrow money if necessary, have power to make contracts for the building, where no special committee is appointed for that purpose.
    A contract of such committee under their own seals, cannot be declared on as the deed of the town, but it may be evidence of a contract made by the town.
    A town has power to increase the number of such committee after the contract is made, and if the new members are excluded from acting with the others by mistake or design of the chairman, the proceedings of such others will be irregular.
    A major part of such committee are necessary to constitute a quorum, and the act of a majority of a quorum is the act of the committee.
    Where a town appointed three persons, who were not inhabitants, to designate a place for building a meetinghouse, it was heldf that a designation by two only was insufficient, they being agents or commissioners, and not technically a committee; but that if they had all concurred, the town might nevertheless reject a designation made by them.
    If a person contracts with a town to erect a meetinghouse on a place to be designated by a committee, and a place is so designated, and the town afterwards disagrees to the designation and gives notice to the contractor, but not until he has made some of the window frames and has carried materials on the ground oointed out. although this is a beginning to execute the contract, n is not a oeginmng to erect tne meetinghouse, and the town may disagree to the first designation at any time before me ground shall be prepared for erecting the frame of the house, they indemnifying the contractor for any extra labor and expense occasioned by their fluctuating pro ceedings.
    This was an action of debt. The plaintiff, m his first count, alleged that on the 22d of February, 1820, by Daniel Smith &c., a committee of the inhabitants of Granby duly appointed and authorized by them to contract for and superintend the building of a meetinghouse in that town, by their writing obligatory sealed with their seal, it was agreed by and between the plaintiff and the defendants, that the plaintiff should build a house for public worship &c., and that the defendants, in consideration that the plaintiff should build the meetinghouse in such place as a committee appointed for that purpose should designate, agreed to pay him &c. And the plaintiff averred that he had erected a meetinghouse in the place designated by a committee duly authorized by the defendants for that purpose, &c.
    In the second and third counts the plaintiff declared generally for work done, materials provided, and money ex pended for the defendants in building a meetinghouse
    
      -The defendants, after oyer, pleaded to the first count, 1. Non est factum 2. That the committee were not authorized to make the deed: 3. That the locating committee had never designated a place : 4. That the plaintiff did not build on the place designated : 5. That he built against the will and without the authority of the defendants, on land belonging to private individuals. Issue was joined substantially on all the foregoing pleas. The defendants pleaded, 6. That on the 2d of May, 1820, they gave the plaintiff notice that they had discharged the contracting and superintending committee and had refused to confirm the doings of the locating committee, and that on the 19th of April, 1820, before the plaintiff began to build, they gave him notice not to build in the place where he did, and requested him to build in another place which they pointed out to him. To this the plaintiff replied, that the defendants did not, before he began to build, give him notice not to build where &c., and request him to build elsewhere &c., and issue was joined.
    To the second and third counts the defendants pleaded nil debent, and issue was joined.
    At the trial, before Wilde J., the plaintiff, to prove the first and second issues, produced the sealed contract declared on, and copies of certain votes of the town of Granby, by which it appeared that on the 21st of February, 1820, it was voted, that the persons named in the deed (thirteen in number) should be a committee to procure a master builder and superintend the building of a meetinghouse for the town; that 4000 dollars should be raised by a tax, towards defraying the expense ; that the committee should be empowered to borrow money on the credit of the town, if it should be found necessary ; and that Daniel Stebbins, Isaac C. Bates and Philo Dickinson (not inhabitants of the town) should be a committee to locate a place for the town to build on. The defendants objected, that the superintending committee had no authority to contract for building the house, and especially that no authority was given them to contract by deed. They also objected, as to the first issue, that the deed did not bind the town, not being in the name of the town but in the names of the committee. The judge, intending to reserve these questions, ruled that the plaintiff had proved these issues by this evidence, the facts not being controverted, and the jury accordingly found a verdict thereon for the plaintiff.
    Upon the third issue the plaintiff gave in evidence a writing, dated the 4th of March, designating a place on r: Cook’s hill, so called, at or near a stake,” &c., which was signed by two of the locating committee, the third being present and dissenting. The defendants objected that the whole three ought to agree. The judge, intending to reserve this question, ruled that the locating by two, all being present, was sufficient; and the jury found this issue for the plaintiff.
    Upon the fourth issue a vote of the town, of the 17th ol April, was given in evidence, adding three persons to the contracting committee. Upon this issue and the fifth, it was contended by the plaintiff, that the superintending committee agreed to the place upon which the house was built; and he introduced witnesses who testified, that at a meeting of the original superintending committee, called for the purpose of marking out the ground, two of the additional members attended, and that the chairman expressing doubts whether they were entitled to be considered members in reference to that subject, six of the old committee, with the two new members, without assigning any reason for their conduct, withdrew, and that six, at least, of the members who remained, agreed that the house should be built where it was in fact built, the seventh intimating his readiness to assent if they could do no better. On the part of the defendants also witnesses were introduced, who testified, that the chairman expressed an unwillingness to act with the two new members of the committee and informed the committee that there was • nothing for them to do, and that thereupon, considering the meeting as dissolved, six of the old members, with the two new ones, retired. The chairman testified that he had no intention of dissolving the meeting, and all the members who remained and acted, seemed, according to their own testimony, and that of several others present, not to understand the remarks of the chairman as indicating such an intention. Some of the witnesses of the plaintiff testified, that the chairman remarked, that there was nothing more for the committee to do than to proceed in the business of the location, as the plaintiff was expected to be on with his hands the next day, and the ground must be prepared.
    The judge instructed the jury, that the town had authority to add to the superintending committee, and that the new members ought to have been recognised as a part of the committee, and that if the jury believed that in consequence of their attendance, or for any other reason, the meeting was dissolved by the chairman, the subsequent proceedings were irregular.
    Both issues were found for the defendants ; and the jury also found specially, that the chairman refused to act with the additional members, and that eight of the committee retired, considering themselves as dismissed by the chairman ; and in answer to an inquiry by the judge, in regard to the views of those who remained and proceeded to act, as to which they were directed to find specially, they stated that they had not considered that part of the case.
    To prove the sixth issue the defendants gave in evidence a vote of the town, of the 10th of April, to reject the designation of a place reported by two of the locating committee, and another, of the 1st of May, to dismiss the superintending committee ; and they proved that this vote was communicated to the plaintiff, and that certain individuals, who were the selectmen of the town, offered to the plaintiff to be at the expense of removing the timber and other materials, and to indemnify him for not building where he proposed to, and also to indemnify him for building in another place, and also assured him, that if he went on to build as he purposed, the town would not pay him. The jury were instructed, if they believed the testimony, to find for the defendants; which they did. They also, under the direction of the judge, found specially, that at the time of the notice and offer above mentioned the plaintiff had contracted for boarding his hands, and that a great part of the materials for building were on the ground where he built, and that the pulpit-windows and cornices were made.
    
      Upon the issues on the general counts the plaintiff gave *n evidence the building of the meetinghouse ; but the defendants objected to evidence on these counts, there being evidence that there was a special contract, which the plaintiff contended was still in force ; and that the work was done pursuant to this contract; and that the town, by their selectmen, had given notice to the plaintiff not to build on the spot where he did, and requested him to build on another place. The judge ruled, that the plaintiff could not recover on his general counts, these facts being proved or admitted, and the jury found on these issues for the defendants.
    ■ The verdict was to be subject to the opinion of the whole Court.
    Strong, for the plaintiff,
    now moved for a new trial; 1. Because the judge misdirected the jury on the sixth issue : 2. Because part of the finding on the fourth and fifth issues was against evidence : 3. Because the finding on the fourth and fifth issues was against law.
    On the sixth plea the jury were told, that beginning to build meant beginning to erect the building. We contend that the preparation made and the work done by the plain tiff, before he received notice to desist, was a beginning to execute the contract; and that the meaning of the plea was, that he received such notice while the contract remained wholly executory; otherwise the plea would be nugatory. If the natural construction of the words is different, yet the Court will give them such a construction as will support the plea. Wyat v. Aland, 1 Salk. 325 ; The King v. Stevens, 5 East, 257.
    As to the fourth and fifth issues, the finding of the jury, that the chairman of the superintending committee refused to act with the new members, was unsupported by the evidence, and their verdict was imperfect, inasmuch as they did not find whether the meeting of the committee was dissolved. If it was not dissolved, the members who remained were • competent to act. Attorney General v. Davy, 2 Atk. 212 ; Rex v. Grimes, 5 Burr. 2601 ; 1 Kyd on Corp. 400, 422, 424 ; Rex v. Monday, Cowp. 538 ; Baker v. Fales, 16 Mass. R. 505. But it was unnecessary for that committee to act at all on the subject of the location of the building. The controversy was, whether it should be placed on a hill or on a flat, and this question was settled by the locating committee ; and if the defendants neglected to fix precisely a site, the plaintiff was authorized by the report of the locating committee to build where he did. Had the new members been added to the superintending committee for the purpose of fixing the precise spot, it might have been reasonable for the plaintiff to have waited for their direction ; but they were appointed for the purpose of preventing him from performing his contract.
    
      Davis (Solicitor-General) and Bliss senior, for the defend ants,
    cited to the point, that the superintending committee had no authority to make a contract, Kupfer v. So. Parish in Augusta, 12 Mass. R. 189 —not being authorized by deed, Bac. Abr. Authority, A ; Co. Lit. 48 b, 52 a ; Com. Dig. Attorney, C, 5 — and this not being a mercantile contract, as to which the law has been relaxed ; Stackpole v. Arnold, 11 Mass. R. 28 ; Long v. Colburn, ibid. 98 ; Northampton Bank v. Pepoon, ibid. 293 : — To the point, that if they had such authority it was not properly pursued, they having no express power to bind the town by deed, and having made the contract in their own names, Banorgee v. Hovey, 5 Mass. R. 36, 37 ; 3 Vin. Abr. Authority, B ; White v. Skinner, 13 Johns. R. 307 ; Harrison v. Jackson, 7 T. R. 206 ; Clement v. Brush, 3 Johns. Cas. 180 ; Appleton v. Binks, 5 East, 148 ; Tippets v. Walker, 4 Mass. R. 595 ; Combes's case, 9 Co. 76 ; Taylor v. Horde, 1 Burr. 60 ; Shaw v. Elwell, 16 Mass. R. 46 ; Fowler v. Shearer, 7 Mass. R. 14 ; Frontin v. Small, 2 Ld. Raym. 1818 ; S. C. 2 Str. 705 ; Green v. Miller, 6 Johns. R. 39 ; White v. Cuyler, 6 T. R. 176 ; Bac. Abr. Leases, I, 10 : — To the point, that all the members of the locating committee should have concurred, Co. Lit. 181 b, 112 b ; 2 Inst. 380 ; King v. Hobbs, Yelv. 26 ; Butler v. Bray, Dyer, 190 ; Leonard's case, 2 Rol. Rep. 257 ; 3 Vin. Abr. Authority, B ; Bac. Abr. Authority, C ; Grindley v. Barker, 1 Bos. & Pul. 229 ; Towne v. Jaquith, 6 Mass. R. 46 ; Cook v. Loveland, 2 Bos. & Pul. 31 ; The King v. Courtenay, 9 East, 246 ; [See also Salem v. Wild, 5 Dane’s Abr. 562] : — To the point, that the defendants might revoke the authority which they had given, Vynior's case, 8 Co. 81 ; Bac. Abr. Arbitrament &c., B ; Skinner v. Dayton, 19 Johns. R. 538 : — To the point, that the action could not be sustained on the general counts, the contract, if any, being by a sealed instrument which is not waived, Whiting v. Sullivan, 7 Mass. R. 107 ; Richards v. Killam, 10 Mass. R. 239 ; Banorgee v. Hovey, 5 Mass. R. 11 ; Vin. Abr. Extinguishment, B, 8 ; 2 Leon. 110 ; Champlin v. Butler, 18 Johns. R. 169 ; Robertson v. Lynch, ibid. 451 ; White v. Cuyler, 6 T. R. 176 ; Andrews v. Montgomery, 19 Johns. R. 163 ; Wood v. Edwards, ibid. 205.
    
      E. H. Mills and Strong,
    
    in reply, said that if the deed could not operate as a deed to bind the defendants, still it might be used as evidence of a contract made by them; Randall v. Van Vechten, 19 Johns. R. 65 ; Bank of Columbia v. Patterson’s Adm’r, 7 Cranch, 304 ; Cooper v. Rankin, 5 Binney, 613. If it does not bind the town, neither does it bind the committee. Macbeath v. Haldimand, 1 T. R. 172 ; Hodgson v. Dexter, 1 Cranch, 345 ; Bowen v. Morris, 2 Taunt. 374 ; Randall v. Van Vechten, ubi supra. The proceedings of the locating committee were of a public character; the principle, that when a body of men are appointed to act, all must concur, applies to private transactions only. Grindley v. Barker, 1 Bos. & Pul. 229 ; The King v. Beeston, 3 T. R. 592 ; Green v. Miller, 6 Johns. R. 39.
    The opinion of the Court was read at April term 1824, in Hampshire, as drawn up by
   Parker C. J.

Upon the first issue several questions of law have arisen, growing out of objections made at the trial. In the first place, it is insisted that the covenant declared on as a deed, was not proved to be the deed of the defendants by legal evidence, the seals being the individual seals of the several persons who acted as a committee of the town, and not the seal or seals of the inhabitants in their corporate capacity. And we think that in no sense can the instrument be construed to be the deed of the inhabitants. It may be questionable whether the inhabitants of a town can contract by deed ; for though they are corporations to some purposes, or what has been called quasi corporations, they have not the distinguishing trait of corporations, that of a common seal; but must act by a vote at regular meetings ; and a vote properly passed will convey lands, as has been held in many cases of titles derived from towns. Whether a vote expressly authorizing an agent or agents to make a deed of land, or other contract under seal, would, if executed according to the power, become technically the deed of the inhabitants, need not now be determined, as no such authority is proved in the present case. This issue therefore should have been found for the defendants. All the other issues, therefore, which apply to the first count, may be considered immaterial; but as the merits of the dispute between the parties are involved in some of them, it will be proper to state the opinion of the Court upon the various points which have been presented for their consideration.

It was objected at the trial, that the superintending com mittee, as such, had no power or right to enter into the contract for building the meetinghouse, either by deed or otherwise, and the second issue was framed to try this question. We think that the vote of the inhabitants gave to this committee authority to enter into the contract. To superintend the building of the house, includes the power to make the necessary contracts, since it does not appear that any other committee or agent was entrusted with this power, and since the making of contracts is essential to the building of the house ; and although the power given did not extend to the making a contract by deed, yet the contract under the seals of the committee, connected with the vote of the town, is admissible and sufficient evidence of a contract by the town. There is a difference between an agent executing a sealed instrument, thereby intending to bind his principal, which principal is an individual, and the agent of a corporation doing the same thing with the same intent. In the former case the seal may, by a prior authority, or subsequent adoption, be the seal of the principal ; and if there be no such authority, it shall bind the agent as his own act and deed. In the latter case the seal can never be that of the corporation ; for they have but one common seal, and that can never be changed except by authority emanating from the power which ere ated the corporation ; and it can be put to an instrument only in pursuance of a vote of the corporation, or by the officer who may be the keeper and entrusted with the use of it. Their agent therefore, who contracts for their use under his own seal, does not bind the corporation in a deed ; though if he had authority to make the contract, it shall be binding upon them as evidence of such contract. The cases of Randall v. Van Vechten, 19 Johns. R. 65, and Bank of Columbia v. Patterson’s Adm’r, 7 Cranch, 305, are satisfactory authorities upon this point.

The third issue presents the question, whether the place for erecting the meetinghouse was lawfully designated by the locating committee, so as that the plaintiff had a right to proceed in the execution of the contract by erecting it on the spot where it stands. The objection is, that three were appointed on this committee, and that two of them only concurred in this designation, the third dissenting. If this body were strictly a committee of the town, without doubt a report of a majority to the town would have been sufficient. But we think they are not to be viewed in this light, but rather as commissioners or agents entrusted with a particular authority ; and as ' such they could only act together, and their united voice would be necessary to bind their constituents, no. power having been given by the vote of the town to act by a majority. The cases cited by the defendants’ counsel sufficiently show, that a delegation of power to two or more, must be executed by all, to be effectual, unless it should appear that it was intended a majority should act. This however does not apply to the proceedings of public bodies, or their committees of inquiry, for in these instances the usage has always been, and the common law is so in relation to corporations, that they are to act by a majority. But such committees are a part of the whole body, representing the whole on the subject committed to them, and they therefore partake of the qualities and enjoy the power of the constituent, unless restricted by the terms of their appointment. When however authority is given to persons not members of the body to do any particular act, such persons are the agents or commissioners of the corporation, and not technically a committee, and they are to be regulated by the principles which apply to other agencies. Besides, we do not think the report of these commissioners would have been binding upon the town, even if they had all concurred ; for these were not two parties who had referred this question to the arbitration of these gentlemen. The town alone was a party, and the commission was given with a view to produce a result which should be satisfactory to the inhabitants, they nevertheless retaining the right to reject the opinion which should be formed.

It will not be contended, that had the town fixed upon a site for the meetinghouse by vote of the inhabitants, at a regular meeting, they would not have had the right, at another regular meeting, to have rescinded that vote and to have designated another site. Surely then they were not bound by the opinion of those whom they had appointed to select a spot for them. The plaintiff was no party to this transaction, and had no right to determine for himself that the place was conclusively designated. This issue should have been found for the defendants, because the locating committee had not in a legal manner designated the place where a meetinghouse should be built.

The fourth and fifth issues may be considered together, because they present the question, whether the place on which the meetinghouse was built, was legally designated f°r that purpose by the superintending committee. The jury have found both these issues for the defendants, and we think" properly from the facts submitted to them. The superintending committee, at the time of doing this act, con sisted of sixteen persons, three having been added by the town to the former number, thirteen, with a view probably to insure a majority against the proceedings which a majority of the first committee would have sanctioned. We think there - can be no doubt of the power of the town to increase their committee. They might have entirely revoked the powers given, and surely might control the execution of them by adding to the number first chosen those who would at tend to the wishes of a majority of the inhabitants. Every member of the committee thus appointed had a right to his vote on the question, and if any one was excluded by mistake or design of the chairman, the proceedings of the others could not be regular, provided the act to be done was to be conclusive as to the selection of a place. Now the jury have found that two of the newly appointed members were prevented from taking part in the deliberations, and that they with six of the old members withdrew. The minority left, under these circumstances, had no power to act or decide. It is true that all the members being assembled, or perhaps if only duly notified, a majority of those present have authority to proceed, if a majority of the whole number are present. But we cannot think that if a major part withdraw in the belief that they, or any of them, are to be prevented from acting, the minority can assume the powers of the whole body. A major part of the whole is necessary to constitute a quorum, and a majority of such quorum may-act. In this respect we think there is a difference between the constituent body and the agent. In the former, those who assemble, all being duly warned, have the power of the whole, unless some number is established by law, charter, or by-law, as a quorum. In the latter, the power is delegated to the whole number constituting the agency ; and though convenience requires and usage has established the right of acting by majorities-, neither will sanction the exercise of the power by minorities.

The sixth issue was maintained on the part of the defendants by the production of a vote of the inhabitants passed on the 10th of April 1820, and by other votes discharging the superintending committee and appointing another in their stead, and disagreeing to the place designated by the locating committee, and by showing notice to the plaintiff. The legal question arising on this part of the case is, whether the notice of these proceedings was given to the plaintiff before he had begun to build in pursuance of the contract. The jury have returned, that before this notice was given, he had entered into a contract for the boarding of his laborers, and that he had prepared some of the window frames and sashes for the building. This no doubt was a beginning to execute the contract, but it was not a beginning “ to erect the meetinghouse on a place designated by a committee of said inhabitants duly authorized for that purpose,” as set forth in the writ, according to the words of the contract; and we think the inhabitants had full right to designate the place for themselves at any time before the ground should have been prepared for erecting the frame, they indemnifying the plaintiff for any extra labor and expense which their fluctuating proceedings may have exposed him to. And this, it appears, they were ready to do. Why the plaintiff should have persisted in the execution of the contract, against the declared sense of the town under these circumstances, cannot be accounted for, unless he is to be indemnified by that part of the inhabitants whose wishes he seems to have yielded to.

We think he cannot, under any view of the facts in this case, be entitled to recover on the contract declared upon ; oecause, first, he cannot recover in the form set forth in the first count, the instrument not being the deed of the inhabitants ; and secondly, because although the same instrument is sufficient, to prove a contract, under which he might recover on the second count upon a sufficient breach alleged and proved, yet that no breach is proved which entitles him to recover the sum sued for, as a debt. His remedy is for damages, and not for a debt certain. We are inclined to think, that had he brought assumpsit upon the contract, alleging his expenses incurred under it, and that the town had unreasonably neglected or refused to designate a place, so that he was prevented from executing the contract, and it should appear that he had acted bond fide, and was in no fault himself, he would recover due compensation for his labor and expense previous to the erection of the house, and perhaps for any loss of profits upon the contract; but as the case now stands, judgment must be rendered for the defend ants. 
      
      
        Springfield v. Miller, 12 Mass. R. 417 ; Thomas v. Marshfield, 10 Pick. 364 ; Adams v. Frothingham, 2 Mass. R. 352. See Pike v. Dyke, 2 Greenl 213.
     
      
       See also Fleckner v. Bank of United States, 8 Wheat. 357, 358 ; Bank of United States v. Dandridge, 12 Wheat. 68 ; Per Chase J. in Bank of United States v. Norwood, 1 Harr. & Johns. 426 ; Angell and Ames on Corporations, 7, § 3, p. 121 ; c. 8, § 3, p. 153 et seq
      
     
      
       See Ex parte Willcocks, 7 Cowen, 402 ; Rex v. Whittaker, 9 Barn. & Cressw. 648 ; Angell and Ames on Corporations, c. 13, § 7, 8, p. 280 et seg. ; Blacket v. Blisard, 9 Barn. & Cressw. 851.
     
      
       See ante, 332, note 1.
     
      
       See Bullard v. Bell, 1 Mason, 290 ; Wilson v. Lenox, 194 (Pet Cond Rep. 292 and note) ; United States v Colt, 1 Peters’s C. C. R. 145.
     