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Kimball v. School District.

CHARLES W. KIMBALL v. School DISTRICT No. 8, IN

ROXBURY.

School district vote.

The plaintiff built a school house for the defendants, under the employment, upon a

quantum meruit, of one member only of their building committee, who, it was claimed, could not act without the concurrence of his associates, and that the committee could not bind the district to an amount exceeding $100.00. The school house was worth $200.00; and, after its completion, the defendants voted to accept it, and voted to pay the plaintiff $105.00 therefor. Held, that the acceptance was absolute, and amounted to a ratification of the proceedings of the committeeman, and bound the defendants to pay the plaintiff what the school house was worth.

BOOK ACCOUNT. The plaintiff's account was for labor and expenditures in building a school house for the defendants, in reference to which the auditor reported the following facts.

In April, 1851, the defendants voted, “ to build a school house the present year,” “to raise one hundred cents on the dollar of the list,"

;" “chose Samuel Richardson and Alvin L. Brigham a committee to superintend the building of said house," and voted to leave the plan of the house to the building committee.” Such a tax, as the grand list of the district then was, would raise about one hundred dollars. The building committee made application to several house builders for propositions, and Richardson had conversation with the plaintiff in reference to building the house, and informed his associate, Brigham, that he was inclined to contract with the plaintiff; Brigham disagreed, and informed Richardson that, if such was the case, he should not act further in the premises. Richardson told the plaintiff that he knew what the vote of the district was,—that he did not feel authorized to pledge more than the amount of tax, that the plaintiff, being present at the time of the vote heard the conversation,—that the district wanted a good house, and would pay what it was worth, and to go on and build a good house. The plaintiff put up the frame, and then told Richardson that a school house, upon the plan submitted, could not be built for the tax voted, but would cost very much more; and that if he expected that the plaintiff was to build it for that sum, he should not do it. Richardson then told the plaintiff to suspend the building until the next season, and then go on and build a good house, so that no fault could be found with it, and the district would probably pay him what it was worth.

Kimball v. School District.

The plaintiff built the school house agreeably to the plan submitted to him by Richardson,-built it well, and had the same completed late in the fall of 1852; but the delay was occasioned by the direction of Richardson.

In the spring of 1853, the district voted to accept the school house, and voted to pay the plaintiff one hundred and five dollars for building the same. The plaintiff declined to receive that sum in full payment. The auditor found that the house was wort $200.00, and allowed the plaintiff that sum, and interest. The county court, March Term, 1855,---POLAND, J., presiding, -rendered judgment for the plaintiff, for the amount reported. Exceptions by the defendants.

H. Carpenter for the defendants.

It was not in the power of one of the committee to bind the district, and if Richardson contracted with the plaintiff to build the house, or to pay an additional sum from that voted, he is liable to the plaintiff, and not the district. Morrison v. Heath, 11 Vt., 610. Angell and Ames on Corporations, pp. 279-280, and cases there cited. 12 Mass., 185.

F. V. Randall for the plaintiff.

The direction of Richardson to build a good house at any rate, and that the district would pay what it was worth, clearly shows that no definite sum was fixed on as the price.

Brigham having declined to act at all in the capacity of building committee, Richardson had authority to proceed alone and build the house, and the district directly recognized this authority, by voting to accept the house.

The opinion of the court was delivered by

BENNETT, J. The school district voted to build a school house, and to raise a tax of one hundred cents on the dollar, which would produce only about the sum of one hundred dollars. The plan of the house was to be left to the building committee, Richardson and Brigham. Though it be granted that one of the committee had no power to bind the school district by a contract which he might make without the concurrence of the other, yet the school district

Colby v. Colby.

might ratify the proceedings of one of the committee. But the house was not, in fact, built under any special contract with Richardson; he told the plaintiff to go on and build a good house, so that no fault could be found with it, and that the district would probably pay him what would be right. This was, in fact, an employment upon a quantum meruit. The plaintiff built a good house, according to the plan furnished him by Richardson; and when finished, the district voted to accept it, and to pay the plaintiff one hundred and five dollars for building the same. The acceptance of the house is absolute, and not upon condition that the plaintiff would accept of one hundred and five dollars as a compensation.

The vote is to accept, and to pay, &c., and in its. nature is divisible. The limitation, as to the sum they would pay, has no effect upon the acceptance. It is found that it was worth two hundred dollars to build the house.

Let judgment below be affirmed.

LEVI COLBY JR. v. LEVI COLBY.

Construction of deed.

A father deeded to his son, as a compensation for his services, a piece of land, with

a condition in the deed that the grantor was to have the use and improvement of the premises during his life, if he should have occasion therefor, and should choose to use them Held, that the grantor retained a life estate in the premises which was extinguishable only by deed; and which, after a voluntary surrender of the possession of the premises to his but without any writing, he could again avail himself of, whenever he chose.

son,

The nature of the action originally brought, does not appear in any of the papers furnished to the reporter. The case was referred, and the referees reported the following facts.

The plaintiff became of age March 14, 1824, and soon thereafter agreed to go to work for his father, the defendant, and take his pay in land. No time was specified and no price was agreed upon. The plaintiff labored for the defendant till 1836, when, having

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intimated his desire for some security for his services, the defendant executed and lodged in the town clerk's office in Berlin, a deed to the plaintiff of one hundred acres of defendant's farm, and gave notice thereof to the plaintiff. The deed was a deed of warranty in common form, with a proviso therein in the following words : “provided, nevertheless, and it is the express condition of this deed, that I am to have the use and improvement of the premises during my life, if I have occasion therefor, and shall choose to do so." No settlement was made by the parties, and no valuation was fixed to the land so conveyed. In 1840 the defendant sold out that portion of his farm upon which he lived, erected a house, barn, and out-buildings upon the land which he had deeded to the plaintiff, and commenced living thereon. The plaintiff continued to labor for the defendant and assist in carrying on the farm, without any other contract than the arrangement entered into in 1824, and without any settlement in relation to the same, until 1847, when the defendant told the plaintiff, that he, the defendant, had become too aged to carry on the farm, and that he, the plaintiff, must take it and carry it on; and thereupon the defendant yielded up the control and management of the farm, together with all the stock, hay, grain, provisions, wood &c., to the plaintiff, who has had the sole control, management and use of the same ever since. The land and such portion of the personal property as were liable to taxation were set in the plaintiff's list in the spring of 1847, and such has been the case with all the taxable property on the farm ever since. The defendant and his wife, (the father and mother of the plaintiff) continued to reside in the family, and were supported by the plaintiff, they doing such light work and chores as their age and infirmities admitted, and as they chose to do, until May, 1854, when, some difficulty having arisen in the family, the defendant left and claimed a settlement with the plaintiff. The referees further reported, that if the court were of opinion from the facts found and detailed as above, that the defendant had not surrendered his life estate in the land deeded by him to the plaintiff in 1836, and had still a right of re-entry thereon, they found due to the plaintiff from the defendant, to settle all matters in controversy between them, the sum of five hundred and twenty-three dollars ; but that if the court should be of opinion from the foregoing facts,

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that the defendant had surrendered his life estate in said premises, and had no right to resume the possession and use of the same, they then found due from the defendant to the plaintiff, to settle all matters in controversy between them, the sum of two hundred and three dollars. Upon this report the county court, March Term, 1855,-POLAND, J., presiding,-rendered judgment for the plaintiff to recover the largest sum reported.

Exceptions by both parties.

Merrill & Willard for the plaintiff.

We claim one of three constructions for this deed. 1. An estate which depended upon the election of the defendant, without any provision that the election should be expressed in writing. 2. A life estate which might determine upon the contingency of the defendant's choice or election, or, 3. An estate at the will of the defendant, which could be determined or surrendered without a deed. Cruise vol. 1, p. 259.

If it was either of these we submit that the defendant had no longer any estate under the deed.

1. The referees find that he has made his election-held the estate as long as he chose, and given it up. He is estopped now from making another election to the prejudice of the plaintiff, who has made investment upon the faith of the surrender.

2. If the second construction is taken, the contingency has happened, and the estate is determined by its terms.

3. If it be treated as an estate at will, it has been surrendered, and cannot be resumed.

Heaton & Reed for the defendant.

I. The effect of the deed of Levi Colby to his son, is to give the father a life estate, and the son a fee after this estate for life. 4 Kent 25; 2 Bacon's Abr. 559; 1 Cruise 105–6; Gorham v. Daniels, 23 Vt. 600; and to divest this estate of the father, a surrender or its equivalent is required. 4. Cruise 92 & 1 and 2.

II. The defendant intended no surrender of his estate by what transpired in April, 1847. There was no such contract between the parties, and no consideration for any. This transaction has no reference to the deed. It was not alluded to or thought of.

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