
    The Inhabitants of Boston versus John Brazer.
    The abutters on a street in Boston entered into an agreement with a committee of the selectmen of said town for the widening the street, and mutually promising each other to submit to the award of certain arbitrators concerning what each should pay or receive on account of the premises, according to the damage or benefit they should respectively receive. An action was sustained by the inhabitants of Boston, on the agreement, against one of the abutters for the sum he was awarded to pay, although the said widening had not been recorded; and the money was awarded to be paid to the other abutters, and not to the inhabitants ; and a part of it was to be paid to an abutter who was not a party to the agreement
    This was a special action of the case, stating an agreement made, on the 29th of January, 1810, between the defendant and certain other abutters upon Exchange Lane, in Boston, so called, severally of the one part, and the plaintiffs of the other part, reciting that the plaintiffs agreed to widen the said lane; and mutually promising each other to submit to the award of certain arbitrators concerning what each should severally receive or pay on account of the premises, as they should, in the opinion of the arbitrators, be respectively damaged or benefited by the widening; that the arbitrators awarded that the defendant should pay 5000 dollars for the benefit he would receive thereby; and then aven-jmg that [ * 448 ] the plaintiffs had widened the lane; * but that the defendant, on notice and request, had refused to perform the award.
    The action was tried upon the general issue, before the late chief justice, at the sittings here after the last October term, and a verdict returned for the plaintiffs, subject to the opinion of the Court upon certain facts stated by the parties.
    The cause was argued, at the last March term in Suffolk, by Thatcher for the plaintiffs, and Dana for the defendant; and again, at Cambridge, by Otis and Thatcher for the plaintiffs, and Dexter for the defendant.
    The objections taken to the verdict by the counsel for the defendant were,
    1. That the agreement, for the non-performance of which the action is brought, was made between the subscribers thereto, and in consideration of their mutual promises; and, in truth, the same was never executed by the plaintiffs, but by C. Bulfinch and F. Wright, a committee of the selectmen, by which, it was contended, .those gentlemen might be bound personally, but not the plaintiffs; and therefore there was no consideration for the defendant’s undertaking.
    
      2. That the way had not, in fact, been widened according to the plan and proposal exhibited to the defendant at the time of his signing the agreement. [The plan came up in the case; and it was agreed that there was a variance of a few inches in the width of the lane, at one end thereof, from what the defendant might have contemplated from a view of the plan.]
    3. That the new part of the way, as widened, had not been recorded, and so, in fact, had not legally become á highway, or part of the lane.
    4. That the money being awarded in this case in part as a satisfaction to Henriy Sargent, one of the abutters, who was not a party to the submission or agreement, the defendant was not held to pay his proportion of that part.
    5. The award of the arbitrators was, that the defendant should pay the money awarded against him to certain other of the abutters, and not to the plaintiffs; so that the latter * acquired to themselves no right of action by virtue of [ * 449 ] the said award.
    The action being continued nisi for advisement, the opinion of the Court was delivered, at the following November term in Middlesex, by
   Putnam, J.

[After stating the declaration.] To this the de-

fendant has pleaded the general issue; and he contends that the plaintiffs are not entitled to recover, because, the action being upon mutual promises between the subscribers to the agreement, and upon no other consideration, the subscription of the committee of the selectmen will not bind the inhabitants, and therefore that the inhabitants are not bound.

By the statute of 1804, c. 27, the selectmen of the town of Boston for the time being are empowered to lay out any new street, or to widen any street, lane, or alley, whenever, in their opinion, the safety or convenience of the inhabitants shall require it; and the selectmen may agree with the parties who may be damaged, or submit the matter to a special committee.

We are all satisfied that, in virtue of this authority, the selectmen might lawfully make the agreement in this case ; that this contract was properly made by them virtute officii; and is not to be considered as operating upon the selectmen individually, but upon the inhabitants. This agreement may properly be construed an undertaking on the part of the inhabitants to widen the lane ; and the several individuals of the other party may, in consideration of their promise to pay and perform the award of the arbitrators, maintain an action against the inhabitants, if they should fail t<r perform their part of the contract.

The defendant further objects that the way has not been widened according to the plan, which was a condition preceden* to the plaintiffs’ right of recovery upon this agreement.

It appeared that the eastern line or side of Exchange Lane extended farther into Dock Square, which both parties [ *450 ] * knew; that, in taking the plan, the proposed widening of twelve feet was measured on an angle according to that projection, and not at right angles with the eastern side of the alley, upon the building of Mr. Sargent on Dock ¡¡¡Square, and the same width was also measured upon the buildings, as they stood in State Street, at the other end of the lane ; and that a right line was drawn between the two points accordingly, from State Street to Dock Square, thereby adding twelve feet to the width of the lane or alley; and that the defendant himself has erected a building on that line.

But the defendant contends that he is not bound by this ad measurement; and he claims to measure at right angles with the eastern side of said alley twenty-four feet, which would run into Dock Square, and from that point to run the right line to State Street.

Upon considering this part of the case, we are inclined to the opinion that the lane has been widened, in fact, according to the true intent and meaning of the agreement; and that the defendant could not have been misled by the plan, as he was perfectly well acquainted with the situation of the premises.

But it is further argued that, although the lane may have been widened in fact, yet the proceedings of the selectmen have not been recorded, as the law requires; so that any one may obstruct it, without being liable to be charged for a nuisance,

We are all satisfied that the town has undertaken to widen the lane; so that the defendant may lawfully use it as a way. If he should be prejudiced from their omission to record it, he may unquestionably recover a compensation in damages.

It is further contended that Mr. Sargent, one of the abutters, was never a party to the submission or agreement, and therefore that the defendant is not, at any rate, liable to pay the proportion of the award assessed upon him for the damages allowed to Sargent.

It appearing from the agreed case that the arbitrators published their award in the presence of all the said parties, [ * 451 ] * and that the defendant and the other parties assented to the same; and it further appearing, from a paper in the case, that the parties to the original agreement were desirous that the arbitrators should proceed to execute their duty, as if all the persons interested in the proposed alteration had become parties to the submission ; and it appearing, also, that Mr. Sargent afterwards assented to the award ; — we do not think this objection can prevail.

It is, however, still further contended that the defendant, at most, undertook to perform the award; and that the award is not according to the submission, inasmuch as the money is not awarded to be paid to the inhabitants of Boston, but to the abutters on the said lane, who were to sustain damage by the widening thereof.

Towns are originally answerable in damages to parties injured by the laying out or the widening of ways, unless they are laid out for the particular use and at the request of individuals. The town of Boston, in this case, was liable to pay to the parties injured the damages they have severally sustained, whether the defendant should pay the award or not.

The true meaning of the submission was, that the arbitrators should determine who were to be benefited, and who injured, by widening this way; and equitably to ascertain what each should contribute to the other. It was immaterial whether the money which the arbitrators awarded against the defendant should be paid to the injured abutters, or to the plaintiffs. Payment to the abutters was, in effect, payment to the town ; inasmuch as it so far discharged the town from its original liability. The award has substantially pursued the submission.

Upon the whole, we are all satisfied that the verdict for the plaintiffs ought to stand,

Judgment on the verdict 
      
      
         Commonwealth vs. Merrick, 2 Mass, Rep. 529. —- Hinkley & Al. vs. Hastings, 2 Pick. 162. — Kean vs. Stetson, 5 Pick. 492. — Commonwealth vs. Low, 3 Pick. 408.— Commonwealth vs. Newbury, 2 Pick. 51.
     
      
       Vide Com. Dig., by Hammond, Arbit. E, 1, and note p. and E, 7; and queer e, whether the award did substantially pursue the submission; and, furthermore, whether the town of Boston could legally be considered as a party thereto. .
     