Chapin v. School District No. 2

Eastman, J.

This action was brought by the plaintiff, in his individual capacity, for work and labor done and performed by him for the defendants, for materials furnished, and for money paid for them. Although he was one of a committee to erect the school house, yet it was in no official capacity that be claimed to recover, but for an indebtedness accruing to him as an individual. Under the circumstances of the case, his official character was not material to his right of recovery, and the action was properly brought Harris v. School District in Canaan, 8 Foster’s Rep. 58.

There appears to have been no controversy as to the fact that the plaintiff performed the labor, rendered the services, furnished the materials, and paid the money, as claimed by him. But the question is, whether, upon the facts stated in the report, the auditor was justified in finding the defendants liable. By the first section of chapter seventy-five of the Compiled Statutes, school districts are authorized to build, purchase, repair, alter or remove their school houses, &c., to purchase land therefor, and raise money for these purposes. It is within the scope of their powers, as given by the statute, to do these and various other acts. The defendants, then, had the power to build the house in question, orto buy it, or to hire the plaintiff to erect it; and they could purchase the land.

This house was built in 1850. At the annual meeting of the district, in March, 1851, the defendants voted to apply the proceeds of the old house to help pay for the new one, and also voted to raise money to pay for the house and land.

It is objected, that this meeting was not legal, first, because fifteen days notice was not given of the meeting; second, because the copies posted were not duly attested; *31 and third, that it did not appear that one of the places at which a copy was posted was the most public in the district.

The case finds that the meeting was the annual one in March. That being so, the notice was sufficient. Seven days notice is all that the statute requires for meetings of that description. Comp. Stat., ch. 74, § 1; Harris v. School District in Canaan, 8 Foster’s Rep. 58. The meetings which require fifteen days notice are special- ones, to raise money, &c., not the annual ones. Comp. Stat., ch. 74, § 2; also Harris v. School District.

We think, also, that the posting of the notice was sufficient. One copy of the warrant was posted on the door of the school house, and that answers the requirement of the statute. This house had not been formally accepted by the district, but it had been used to keep that winter’s school in, and was de facto a school house in the district. Notices of annual school district meetings are to be given by posting up a copy of the warrant “ on the door of the school house, if there be any in the district, otherwise at one or more public places in the district.” Comp. Stat., ch. 74, § 1. But even if the posting on the door of the school house was insufficient, the return could be amended, showing that the notice was posted at a public place. Harris v. School District, before cited.

But the copy of the warrant appears not to have been attested according to the strict letter of the statute, the provision being that it shall be attested by the committee. In this district, the committee consisted of two persons, and although the warrant was duly signed by both of them, yet the copies posted were attested by one only. Now how far this exception might operate upon the legality of any tax assessed by virtue of any vote passed at such a meeting, need not be determined; and whether we should consider the defect as fatal, did the plaintiff’s right depend upon it, we find it unnecessary to decide; for we regard the repeated use of the house, without objection or protest from the dis *32 triet, and the apparent appropriation of it to their own benefit, with the plaintiff’s assent, coupled with the action of the district in voting to apply the proceeds of the old house to help pay for the new one, and in voting to raise money to pay for the house and land, as evidence entirely competent to authorize the auditor or a jury to find an acceptance of the house.

In Abbott v. School District in Hermon, 7 Greenl. 118, services were rendered by the plaintiff similar to those in the present case, and the court held that the keeping of the school in the school house, was an acceptance of the house on the part of the district, binding them to paya reasonable value for the building; and the general principle was laid down that if one accepts or knowingly avails himself of the benefit of services done for him without his authority or request, he shall be held to pay a reasonable compensation for them. Mellen, C. J., who delivered the opinion of the court in that case, says: “ The acts in appropriating the school house to its intended uses, and for the benefit of the district, we must consider as an acceptance of the house, and a sanction of those acts which the plaintiff had done towards completing it, equivalent, in its legal effect, to a previous request on the part of the school district.”

In Fisher & a. v. School District No. 17 in Attleborough, 4 Cush. 494 , the house was built by the plaintiffs in 1846, and the case was decided in the supreme court in 1849, having been tried before a jury in the common pleas. It appeared that after the house was built, all the schools of the •district were kept in it, and all the meetings of the inhabitants of the district were held therein, and that notices of the meetings were posted upon it; and it was held that on these facts a jury were warranted in finding such a ratification and acceptance by the district as would render them liable to pay the plaintiffs for the house.

These authorities are in point; and the first one goes •further than is necessary for us to go in deciding the case at *33 bar. If a school is kept in a bouse merely by the direction of the prudential committee, without anything being done by the district, it would seem not to be competent evidence of an acceptance. Hayward & a. v. School District in N. Bridgewater, 2 Cush. 425. The facts in this case, however, are such as to remove it from all doubt. Not only were schools repeatedly kept in the house, but the district voted to raise money to pay for it. There were positive acts on their part, as in the case of Fisher & a. v. School District in Attleborough; acts showing a ratification and acceptance of what the plaintiff had done.

We might observe, further, that the district having met in pursuance of the notice, and passed the vote to raise money, to pay for the house, it might be a question how far they could go, as between them and a third person, in repudiating that vote on the ground of informality in certifying the copy calling the meeting.

The exception taken to the admission of the plaintiff as a witness on the hearing before the auditor cannot prevail. The testimony of a party is admissible, in the discretion of the auditor, and a report will not be set aside either for the admission or rejection of the party, unless the court shall see that wrong has been done. Mann v. Locke, 11 N. H. Rep. 248 ; Smith & Lougee v. Smith & Bannister, 7 Foster’s Rep. 244; King v. Hutchins, 8 Foster’s Rep. 561.

It is true that it was said in Lovering v. Lovering, 13 N. H. Rep. 521 , cited by the defendants’ counsel, that if it should appear that injustice had probably been done by admitting one of the parties to testify, the court might set aside the report or recommit it, as the case might require j and such is undoubtedly the true qualification to be given to the universality of the rule. Fuller v. Little, 7 N. H. Rep. 539 . It must appear that injustice has been done, otherwise the report will not be disturbed either for the admission or rejection of the party as a witness. And here no such injustice appears. The defendants were a corpora *34 tion, but that did not prevent the members of it from testifying. Every voter in the district would probably have been admitted as a witness had they been offered..

The proposition of the defendants’ counsel to introduce evidence showing that the record of the meeting of the district in March, 1851, and the votes then passed, was not according to the fact, was rightly ruled upon by the auditor. The point appears to be abandoned in the argument, and from the conviction, no doubt, that the position is untenable.

We are entirely satified that the conclusion to which the auditor arrived in finding the defendants liable was correct, and we are accordingly of opinion that there should be, Judgment on the report.