I agree with the majority opinion as far as it goes, but I do not think that it is apparent that the claim sued on in the third count of plaintiff's declaration was audited and determined as being correct by the board of county commissioners.
The claim audited by the board of county commissioners as now appears from the record was the claim of plaintiff for pay under a contract and was not a claim for the value of work and materials for which recovery could be had in assumpsit. If the plaintiff may recover in this case the recovery must be for the value of the work and materials furnished, and not for thecontract price.
So far as the record shows, there has never been any claim presented to Hillsborough County for the value of the work done and materials furnished and it appears to me that Section 2941 R. G. S., 4665 C. G. L., applies to the claim of the plaintiff and that to recover he must show that the claim for the value of work and materials was presented to the board of county commissioners within the period prescribed by statute and that it will not suffice to say and prove that he presented some other sort of claim representing the amount which he claimed to be due to him under a contract, regardless of the value of the work and materials.
ELLIS, J., concurs. *Page 368
