Fisher v. Inhabitants of School District No. 17 in Attleborough , 58 Mass. 494 ( 1849 )

Fletcher, J.

This is an action of assumpsit, to recover a balance alleged to be due to the plaintiffs for building a school-house. It appeared in evidence, that the plaintiffs and one other person had been appointed a committee to build a school-house ; that such other person refused to act; and that the plaintiffs went on without him and built the school-house, payment for which is sought to be recovered in this suit. It was objected, on the part of the defendants that three persons having been appointed to build the house, two of them could not lawfully execute the powers given to the three, and that the plaintiffs could not recover in this suit. But it is not necessary to settle this question, in the present position of the case.

Assuming that the defendants are right in their objection, that the power given by the district to three could not be legally executed by two only, so as to bind the district simply upon the vote of the district giving authority to the three to build the school-house ; yet the district might afterwards ratify the proceedings of the two in building the house and accept the house thus built; and if the district did so ratify the acts of the two, and did so accept the house when built by the two, they would be bound to pay for it. And the evidence introduced by the plaintiffs, as to the acts of the district, was competent and sufficient to prove such a ratification and acceptance, as would render the district liable to make payment for the house, as demanded by the plaintiffs.

The instruction of the court below, to which exception was taken by the defendants, was in substance and effect, though not exactly so in form, that if the jury should find upon the evidence, which was competent and sufficient for the purpose, that the district had so ratified the acts and doings of the plaintiffs in building the house, and had in fact accepted the house when built, then they would be warranted in finding for the plaintiffs. And the jury accordingly so found. The instruction, therefore, of the court below, and the finding by the jury, being well warranted by the facts in the case, the exceptions must be overruled, and judgment entered on the verdict.