Wilson v. School District No. 4

Bell, J.

The main question raised by this case was considered and decided in the case of Harris v. School District No. 10, in Canaan, (8 Fost. 58.) It was there held that the discretion to determine what sum was necessary and proper to be raised by the district for the purpose of building and repairing school houses, was by law vested in the district, and not in the building committee; that the votes passed by the district relative to building or repairing a school house, at a school meeting, are to be considered and construed together, and the pswers of the building committee are limited to the amount appropriated by the district for the purpose, and that the committee have no powers to bind the district beyond the amount so limited. In the present case the amount voted to be raised, and the proceeds of the old school house, which they were directed to sell, amounted to $327.62, and beyond that amount the committee had no power to bind the district. It seems they have expended $464.14, exceeding the amount they were authorized by the district to expend, by $136.52. Of the money voted to be raised, $150 has not been paid to the committee, and as to this there is no question of the right of the plaintiffs to recover in some form; since we do not understand that any serious question is raised in relation to the fact of their election to be the building committee of the district, or as to the fact that the whole amount voted to he expended has been applied to the building of the district school house. The controversy turns as to that upon other points.

*124 It is contended by the plaintiffs, that notwithstanding the principles settled in Harris v. School District, they are entitled to maintain their action for the whole amount of their expenditures,' because they allege that the district have accepted the school house, and ratified and approved the increased expenditure. It is clear that if this position is supported by the facts of the case, it constitutes a good ground of recovery. A ratification is equivalent to a previous request or authority. The report finds that the school house was in the main well built, of modern style, and suitable for the district, and the expenses incurred were reasonable for such a house as they built. The expenditure, we may fairly infer, was beneficial to the district. Under such circumstances, few persons would be inclined to require very strong evidence to satisfy them of the assent and approval of the district, if the evidence tended all one way. But still such assent is a fact to be proved. It cannot be assumed.

The only facts reported bearing upon the question are thus stated : “ All the schools of that district have been kept in that school house, and all the school meetings of the district have been held therein since the same was completed. The first school kept therein commenced about November 13,1850, and continued two or three months, until the money of the district was expended.”

The question upon this point of the case is, whether these facts, standing alone, or connected with the fact that this action was commenced on the first day of January, 1851, prove the assent and ratification of the district of the acts of the committee. If these facts alone are competent, they are sufficient, if uncontradicted, to prove such ratification.

The most common cases where questions arise as to the effect of acceptance and approval of acts done by others, are the cases of work done by contract, where the attempt is to resist payment of a full price, because of the defective character of the materials or workmanship. The general rule undoubtedly is, that if a party receives, without objection, an article made for him by *125 contract, having a reasonable opportunity to examine and know whether it is conformable to the contract, this is evidence that the party accepts it as a performance of his contract, and if so accepted the party is bound.

The evidence results from the union of three circumstances : the voluntary receipt, the absence of objection, and the knowledge or opportunity to know the defects. The rule by no means applies equally in all classes of cases. It hardly applies, or with slight force, in cases where the party has no option to receive or reject the labor or service performed; where he has no means, or such as are imperfect, to know the defects or objections, or where he declares his objections, thus negativing any assent. Whenever the service performed is done upon the property of the employer, and cannot be separated, the owner has no power to reject, or refuse to receive it. A man, who receives back his horse from a farrier, furnishes no evidence that the animal has been properly shod, or that he is satisfied with the work. If he knows, and does not object, these facts together are evidence of acquiescence.

In most cases where work and labor is performed upon real estate by contract, the mere fact that the owner makes use of the building, or structure built upon his land, furnishes no evidence of approval or acceptance, because he has no choice to reject it. He cannot remove it from his premises without greatly injuring or destroying its value. The builder cannot remove it, so as to render it useful to himself. The property has vested in the owner of the land, and he cannot divest himself of it, except by the assent of others; and in the case of buildings erected upon his own land, for his own use, he has no choice but to use them as they are, whether they are satisfactory or otherwise.

Alone, the use of such buildings gives no evidence of acceptance. Accompanied by silence, and the absence of complaint, where to complain would be natural and suitable, or by any circumstance indicating acquiescence, it would be evidence.

In the present case the proof is, at the most, confined to mere use, so far as the facts are found by the report; that use *126 continued but a short time, and followed by a suit, indicating the refusal of the district to accept or pay, and that cannot be deemed evidence of acceptance. The building was erected on land of the district, and in part, at least, with their money. They had the right, of which they could not alone divest themselves, to use it, and they were, to some extent, under a necessity of using it.

If a school district were a person, an individual, the evidence would be incompetent to prove assent, unless accompanied by silence, or the absence of any complaint. But school districts are quasi corporations, of very limited powers ; capable of acting in two ways, and of binding themselves in no other way; that is, by their votes at meetings of the district, warned and holden according to law; and by their agents, duly appointed and authorized. It is not suggested here that there has been any vote of the district allowing this claim, or in any way ratifying the acts of the committee, in any thing they have done beyond the amount of the means voted by the district. If they are bound, it is by the acts of agents, or members of the district, having competent powers to bind them by their action.

The ordinary agents of a district are the building committee, such as the plaintiffs are in this case ; and the prudential committee. The moderator and clerk are officers, whose powers are cofifined to the meetings of the district. In the use made of the building erected by the plaintiffs, the prudential committee is the only agent of the district who is regarded by the law as having any concern. It is his duty to provide a place for the school, a teacher, fuel, and other necessaries. It is his business to direct where the school shall be kept, and when. But the prudential committee, as to most of .his duties, can hardly be regarded as the agent of the district. He is a public officer, whom the district have a right to choose, if they proceed in due season and in conformity to the laws ; but who may be equally well appointed by the selectmen of the town, if the district neglect to choose ; but his powers are in general derived exclusively from the law. They are not conferred by the dis *127 trict; they cannot be revoked by it, nor diminished, nor controlled by it in any way. He may be removed from office, but while he remains in place his powers and duties are governed only by the law. It is essential to every agency that it is revocable by the party who creates it. And this furnishes a decisive test that in his action as committee he acts by virtue of his official powers, and not by virtue of any delegation of authority by the district. School District v. Randall, 7 Cush. 478 .

If the prudential committee should be regarded as an agent of the district, he is not a general agent. His powers are confined within brief limits, and beyond them he is without authority, and cannot bind the district. And there is no pretence that as such agent he has any power to act in relation to the rebuilding or repairing of the school-house by the building committee, which is the subject of this suit.

The keeping of the district school in the school-house erected by the plaintiffs, was the act of the prudential committee, and such an act, in a suitable case, might bind him, yet it could not bind the district. He was bound to provide a place for the school, but the district could exercise no control over his action in this respect, and were therefore not affected by it. This question, though new here so far as we are aware, has been the subject of decisions in Massachusetts and Maine, where it was held that the keeping of a school by the prudential committee does not affect the rights of the district, nor amount to an agreement to pay for the house. Kingman v. School District, 2 Cush. 425 ; Davis v. School District, 24 Maine 349 .

The acts of the scholars in attending the school kept in the new school-house were the acts of individuals merely, and not of the corporation. Neither parents nor scholars, as such, had any power to bind the district. The case in this respect is like the case of Taft v. Montague, 14 Mass. 285 , where it was held that the acts of travellers, in passing over a road, could have no effect to constitute an acceptance of a bridge erected by contract in a manner alleged to be defective. See Chaplin v. Hill, 24 Vt. (1 Dean) 528 ; Lane v. School District, 10 Met. 462 .

*128 Though very slight acts of the district may be sufficient, as voting that notices of meetings should be posted on the house, and meetings held there; Fisher v. School District, 4 Cush. 294 ; yet they must be the acts of the district itself, or its authorized agents, and not unauthorized acts of its members. Davis v. School District, 24 Maine 349 .

In order to render the use of an .article, or the occupation of a building without objection, evidence of acceptance, it is indispensable that the party supposed to accept should have knowledge of the defects of it, or, in a case like this, that the building had been constructed at an expense greatly increased beyond that agreed on or authorized. In this case no such knowledge is shown, and there is force in the suggestion that the defendants had the right to presume that the committee had not exceeded their powers, and that the house had been constructed for the money voted for that purpose. If the fact of a defect or increased outlay was designedly concealed, no one would infer assent or acquiescence in what the party did not even know to exist.

The case of overcharge differs very much from the case of supposed defective workmanship. Where a contractor, or other person, undertakes to erect a building, or furnish an article for a fixed price, there is no ground to presume, from occupation or use, a promise or agreement to pay an increased price, unless the party is shown to be aware of the increased cost, and of the intention to found upon it a claim for the surplus ; because in such case the contractor ordinarily has no claim to any increased pay. He has undertaken the work for a known amount of compensation, and the loss is’his own if he either so plans or so performs his work that it cannot be completed for the money. That was substantially the present case. The committee were limited as to price. They had no right to go beyond the limit. If they did, they had no claim for the balance. The district, without notice, had no ground to'suppose such over expenditure, or the existence of a claim for increased pay, and no inference could justly be drawn, without such notice, that they assented to *129 or approved of that expense, or had the slightest intention to pay it. They had no reason to complain, so long as they only knew, if they were even aware of that, that they had a better building than could ordinarily be obtained for the money appropriated.

It does not appear in this case that the use made of the school-house was without objection. This is essential to make the occupation proof of the approval of the district. It is a fact to be proved, and not to be presumed. It is to be proved by the party who asserts it, and not a matter to be disproved by the defendants. Nothing here, unless it be the absence of evidence, tends to show that the district might not be much dissatisfied that nearly fifty per cent, had been added by the committee to the expense of the house, above what the district had voted. The commencement of the plaintiffs’ suit within seven weeks after the house was completed, is pretty conclusive evidence that objections were made, and that the district neither approved nor agreed to pay the increased expense.

Objections were made to the organization of the school district, but it seems without foundation. It appears that a district was in fact established in 1826 by a vote of the town, and it had continued a district in fact, with well defined limits, as fixed by the vote of the town, from that date till the division of the town in 1845, when the town appointed a committee to divide the town into school districts, who reported that the old boundary lines of this district, as they then existed, be adopted as the lines of the district in future; and this report was accepted by the town. This vote of acceptance was a sufficient establishment of the district, and the boundary was well defined by the reference to the then recognized lines of the district. These could be made certain by reference to the record of 1826. It was in this view immaterial whether the division of 1826 was made at a .meeting duly warned or otherwise.

It is said the plaintiffs were bound to give notice of their claims to the district, before they were entitled to commence a suit. But it seems to us that if the plaintiffs were entitled to *130 maintain a general indebitatus assumpsit, they were not bound to allege or prove anything more than is usually required in such cases. Graves v. Ticknor, 6 N. H. 54. Their ground is that they were employed to perform a particular service; they had performed it; and nothing remained but to pay the price or value. In such cases general assumpsit is a proper remedy. Mitchell v. Gile, 12 N. H. 393.

Objections are made to the declaration, which we have not regarded. If well founded they are not to be reached in this mode. The questions arising upon the auditors’ report and the statement of. facts therein contained alone are transferred to this court. Objections were made to the specification. The specification originally filed we think gave sufficient notice of the nature of the claim. The defendants could not have been misled, and both parties seemed prepared to try, and to have actually been fully heard upon the merits of the case. Objections in the nature of a special demurrer do not lie to a specification.

Judgment on report for $150, and interest from date of writ.