Sanborn v. School District No. 10

By the Court. McMillan, J\ This action is brought to recover a sum of money alleged to have been found due to the plaintiff upon an accounting between the parties. Upon the trial of the cause, the plaintiff called ’Win. Lyon, the present Clerk of the School District, defendant, and proposed to prove by him the authenticity of a book alleged to be the hook of record of the district, at the time the cause of action is alleged to have accrued. The witness testified, “ I did not receive the book from my predecessor in office, but did re — 29 — ceive it from tlie plaintiff in this action; my predecessor was not present at the time the book was delivered to me by the plaintiff. I cannot say that the book is the record of the district. ” "Without examining this witness farther, the plaintiff called Thomas Bowles as a witness, who testified, “ I ain. a resident of School District No. 10, have been a resident of said district until within the last few months since 1855. ” The book was now handed to the witness by plaintiff’s counsel with the request to examine it and state if that was the book formerly kept by him as school district clerk; to which defendant objected, and the objection was overruled and defendant excepted. The book purports to be a record — it comes from the custody of the present clerk, and is identified by Bowles a former clerk of the district, as the book of records kept by him as clerk. This is a sufficient authentication, frima facie. If it was not the record, the witness Lyon could have said so; he must know whether it is the record in his office,'and it is evident it was. The plaintiff offered the book in evidence, which was objected to by the defendant— 1st. That the book was not shown to come from the proper custody, and the custody from which it did come was not accounted for. 2d. The witness was not a proper person to establish the authenticity of the book as the school district record. 3d. It does not appear that any of the meetings were legally and properly called. The first two objections are already disposed of. The third therefore is to be considered, and in the consideration of this objection we may embrace all the objections to the record of specific meetings, which are substantially, 1. That it does not appear that the purpose for which the meetings were called was stated in the notice of meeting. — 30 — 2. That it does not appear that any notice of either meeting was given. 3. It does not appear that the time and place of the meeting of October 5,1857, termed an annual meeting, were fixed at the annual meeting previous thereto. The question raised by the first two objections is a question as to the burthen of proof, not the necessity of giving a notice, or its essential requisite. The statute under which this School District, defendant, was organized, in prescribing the meetings of the district, provides that an annual meeting shall be held at the time, and place previously appointed, and at such annual meeting the time and place of holding the next annual meeting shall be fixed; but no further provision is made for an annual meeting in case of failure to designate the time and place at the last meeting. It further provides that special meetings may be held whenever called by the trustees or any two of them, and all notices of annual or special meetings shall be in writing, signed by the trustees or cleric of the district, and shall state the object for which the meeting is'called, and shall be posted up in three public places of the district at least six days previous to the time of holding such meeting. Comp. Stat. page 359, Sec. 67. It is further provided that “it shall be the duty of the clerk of such school district, 1. To record 'the proceedings of his district in a book to be provided for that purpose by the district. 2. To give notice of annual or special meetings, ” &c. Comp. Stat. page 359, Sec. 68. There is no other provision in the statute requiring any record of the notice of any meeting, or prescribing what shall be the evidence of such fact. It is provided by See. 64;, page 358, that “the inhabitants entitled to vote in such district, or any — 31 — portion of them not less than five in number when lawfully assembled in any district, in any district meeting, shall have power by a majority of the votes of those present, ” among other things, “2. To adjourn from time to time as occasion may require. * * * 4. To designate a site for the district school house. 5. To levy such tax (not exceeding six hundred dollars in any one year) on the taxable property in the district as the meeting shall deem sufficient to purchase or lease a suitable site for a school house, and to build, hire or purchase such school house, and keep in repair and furnish the same with necessary fuel and appendages. 6. To repeal, alter or modify their proceedings from time to time as occasion may require * * * 8. To designate the number of months a school shall be kept during the year, and when said district is organized as above provided, it shall he to all intents and purposes a body corporate, capable of suing and being sued, and fully competent to transact all business appertaining to schools and school houses in their own district, according to the provisions of this chapter. ” Excluding from present consideration the further objection, subsequently noticed, to tbe admissibility of the record of the meetings of March 4, 1861, and subsequent thereto, the record of each of the other meetings, except those held by regular adjournment, recites the fact that “pursuant to notice previously given in writing, agreeable to the provisions of statute, the legal voters of School District No. 10, met” &c. If irrespective of the record of this character, the meeting having- been held, the presumption would not be in’ favor of the regularity of the proceedings, under the present circumstances, we think, the clerk being required to. give notice of tbe meetings, and to keep a record of the proceedings of his district in a book to be provided for the purpose,, and no other mode of the record of the notice, or evidence of the same being prescribed by — 32 — statute, the record is prima facie evidence of a regular notice. Doughty vs. Hope, 3 Denio, 598; Briggs vs. Murdock, 13 Pick., 306; 1 Greenl. Ev., Sec. 493; Codman vs. Marston, 10 Mass., 150-1; Ang. &. Ames on Corp., Sec. 199. But it is objected that the record of the annual meeting of October 5, 1857, was incompetent “because it did not appear from the records, or otherwise, that the time or place of holding this meeting, had been fixed at any previous meeting;” and wo are cited to the case of Marchant vs. Langworthy and others, 6 Hill. 646, as directly in point. That decision was made under the New York statute, which contains the same provisions witli reference to annual meetings that our statute does, but it also contains a provision for an annual meeting if the time is not designated as specified. 1 Rev. Stat. N. Y. 3d Ed. pp. 541-2, Secs. 87-89. Our statute contains no such provision, so that if the designation of tiie time at the preceding annual meeting is, under oúr statute, of the essence of the provision, no annual meeting can ever afterwards be held, in case of the failure to make such designation. While under the N. Y. statute the decision in Marchant vs. Langworthy may be altogether right, under the different provisions of our statute we do not regard the designation of the time by the annual meeting as intended by the legislature to be indispensable. But the powers of the district meeting are the same whether convened as an annual ,or special meeting, and the fact of notice appearing in this, as in the other cases, the meeting would be sustained as a special meeting of the district. The record of March 1,1861, was objected to, in addition to the general grounds urged to all the records, on the further ground that the statute of limitations having run against the claim in suit, the vote of the voters at a district meeting cannot take it out of the statute, which was overruled. — 33 — The same question was also raised by the motion for non-suit, and also by tbe fifth request to charge, submitted by the appellant, which was refused, and an exception taken to such refusal by the appellant. Assuming for the present the validity, originally, of the plaintiff’s claim against the district, we think the evidence establishes both an acknowledgment of, and a promise to pay the debt, sufficient to take it out of the statute of limitations. The corporation, in the case of school districts under ch. 23 of the comp, stat., consists of the inhabitants of the district, and possesses the corporate powers expressly conferred by sulci. 8 of sec. 64 of that chapter, and is “fully competent to transact all business appertaining to schools and school houses, within their district.” The trustees are officers of this corporation, and are the agents of the corporation, for the purposes, and to the extent prescribed in the statute, and no greater: Their general duties are prescribed in Sec. 70 of the same chapter; among other things, “to purchase or lease a site for the district school house as designated by a meeting of the district, and to build, hire or purchase, keep in repair, and furnish such school house with necessary fuel and appendages, out of the funds collected and paid to them for such purpose, and to have the custody and safe keeping of the district school house.” Subd. 4 Sec. 70. There is no where any general power or duty conferred or imposed on the trustees, to contract or be contracted with, nor requiring or authorizing them to act generally as the agents of the district. On the contrary it is evident from the subdivision of the section cited, and from the whole tenor of the statute, that the trustees were limited and restricted in their powers, and that the. control.of the affairs of the district was to rest with the inhabitants. In Robbins vs. School District No. 1 of Anoka County, 10 Minn. 340, the action of the trustees in contracting for the building was authorized by the district meet — 34 — ing, and being so authorized, the statute, in the foregoing subdivision, it was held, authorized the trustees to contract for forbearance of the debt. But in that instance there was a valid and subsisting indebtedness; We do not think, however, that under the powers conferred by the statute upon the trustees, they have any authority whatever to make a promise or acknowledgment which will take a debt out of the statute of limitations, when the statute has run against it, at least, without express authority from the district, but that the power exists somewhere in the corporation, there can be no doubt, and since the residue of the corporate power not vested in the trustees exists in the district, it must be capable of exercising it in the manner prescribed in the statute, that is, by the action of the inhabitants in meeting assembled, and that action is discovered by the records qf the district. From the records of the district it appears that at a meeting, February 5th, 1861, it was voted that John Sanborn be requested to make a proposition upon what terms ho would, settle his claim. At the meeting held March 4, 1861, the plaintiff submitted the proposition set forth in the complaint as follows: “To the Inhabitants oe School District No. 10, in Cannon City : In answer to the request made by se.veral of the tax payers of the district for my best proposition for the adjustment of my claim against the district, I submit the following proposition, that is to say; I will take the sum of twelve hundred and fifty dollars ($1,250) in full satisfaction and discharge of said claim, the same being all the claim I hold against the district. JOHN SANBORN. Cannon City, March 4, 1861.” And the majority of voters present voted to accept it, and “voted to vote on the question by ballot, and proceeded to — 35 — ballot; whole number of votes cast 41; 25 voting in favor of accepting the proposition, and 22 against;” and at a meeting of “June 26, 1861, it was voted that the directors of said district be directed to draw the money in the County Treasury and pay it to John Sanborn to apply on the present indebtedness of the district.” It would be difficult to find an instance where the acknowledgment of a debt is more distinctly made than in this case. The proposition from the plaintiff is in writing, and is a positive unconditional offer to the defendant to accept a sum certain in full payment of his claim, and expressly excludes the presumption of there being more than one claim to which reference could be made. The proposition is as distinctly accepted by a vote by ballot. But in addition to this it was subsequently voted that the- directors of said district be directed to draw the money in the County Treasury, and pay it to John Sanborn to apply on the present indebtedness of the district. There is no reasonable doubt that the action of the district accepting his offer was intended ás a concurrence in the proposition on their part, to be communicated to the plaintiff. The proposition had been requested at a previous meeting; it was submitted by the plaintiff in response to a motion in the meeting; it was received and acted upon in open assembly, and recorded upon the official register by the clerk of the district, whose attestation is upon the record; and a further direction to the trustees, to pay to the plaintiff on the indebtedness the money in the County Treasury, is made in open meeting. The case at bar is clearly distinguishable from Shaw and others vs. Stone and others, 1 Cush. 243. In that case the question was whether a contiaet between a private corporation and another had been reduced to writing so as to prevent the admission of parol testimony as to the agreement. It appeared that Gr. S. & Co. were by a vote of the directors ap-. — 36 — pointed the general agents in B. of the IT. M. Company for selling and buying, and also for taking a general supervision and control of the affairs of the company, subject however to instructions- from time to time from the directors. A committee was at the same time appointed to make arrangements with them for their compensation as agents. Subsequently the committee made a report which was accepted, making a recommendation exclusively with reference to the compensation to be allowed. The plaintiffs, assignees of the IT. M. Co., offered certain parol testimony, which was objected to on the ground that the vote of the directors, and the subsequent acceptance of the report of the committee, constituted a contract in writing, which ought not to be altered or enlarged by parol evidence. The Court overruled the' objection. Here it is not sought to establish a contract, but a mere acknowledgment, in some writing signed by the party to be charged. The object of the statute is to secure written evidence of the acknowledgment. The party to be charged here is the corporation ; the act of a majority in a lawful meeting is the act of the corporation; its acts may be proved in various ways, but its records are, as a general rule, the best evidence of its proceedings, being the written evidence of its action by its agents through whom alone it can act. When, therefore, the action of a corporation, school district, constitutes in substance an acknowledgment or promise sufficient to take a debt out of the statute of limitations, and that action is made a matter of record, such record we think is a memorandum in writing within the meaning of Sec. 73, Ch. 60 of the Comp. Stat. The rulings of the Court were correct. This being the case, it follows that this action of the district could not be rescinded so as to bring the claim again within the bar of the statute. 1 Smith’s Lea. Cas. 875. Baily vs. Grant, 21 Pick, 323. Mumford vs. Truman 8 Met. 432. The acknowledgment herein — 37 — must be made before the commencement of the action; the record of the meeting subsequent to the commencement of this action was not admissible for the purpose of showing an acknowledgment. But we are unable to see that it could have injured the defendant in any manner, and we do not feel called upon to disturb the verdict on this ground. The defendant’s counsel having called "Win. Sanborn, one of the trustees at the time of making the instrument sued on, asked him, “ Did you have any authority to make the note in suit ? ” which was objected to by plaintiff and objection sustained, and defendant excepted. The instrument was not relied upon as a note in any sense, and it matters not here how the witness would have answered the question: it has already been determined by this Court that the trustees had the power to account under the circumstances, and give to the plaintiff a written memorandum of the indebtedness, which would bind the district-, we think, therefore, this question was immaterial, and the exception must be overruled. Robbins vs. School District No. 1 Anoka Co. cited ante. At the conclusion of the case the counsel for the defendant submitted several points which he desired the Court to give in charge to the jury. As to the first two requests, whatever may be their merits as abstract propositions, they are not applicable to this case, and the refusal of the Court to charge them is not ground for a new trial. The facts are established by the records of the district, and undisputed, that at the district meeting of Nov. 14, 1856, the trustees were authorized to erect a school house upon the site designated, to cost not less than $1,000; and there is nothing in the case, so far as we can discover, to show that the district at that, or any other time, provided a fund which they deemed- sufficient for the purpose. These requests are based upon a state of facts which the jury — 38 — ■would have no authority to find: they are therefore immaterial here. The third request submitted is as. follows: that even if it is not necessary that an express tax for the whole amount needed should be voted in advance, the voters of the district must have determined the amount which they would expend on a school house, and the district cannot be bound by the unlimited discretion of the trustees in incurring such expenditure, and expenditure in excess of the amount so voted is void, and cannot be collected of the district. The Court had already charged the jury that the indebtedness contracted by the trustees for the building of the school house is not binding on the district, unless their action was authorized by the district, or their acts were subsequently ratified by the district. That the trustees are limited by the amount directed by the district meeting to be expended for a school house, when so specified, is we think beyond doubt, and that in the absence of any ratification of the action of the trustees by the district, the district would not be liable, but that the action of the trustees may be ratified so as to bind the district, we have no doubt. The district, in district meeting, may determine any amount they see proper, for the erection- of the school house, their power' is not limited in this respect, but only as to the amount of tax they may levy in any one year to meet it; nor does the exercise of the authority to thus determine the amount, exhaust the power'of the district; it is a general power in the corporation. Robbins vs. School District No. 1, Anoka Co., 10 Minn., 340. If a corporation ratify the unauthorized act of its agent, the ratification is equal to a previous authority, as in case of natural persons. Ang. & Ames on Corp., Sec. 303. The vital question in this case was a question of ratification, and ii-orn the language of the request1 itself, and subsequent requests submitted at the same time, — 39 — especially in view of the charge previously given by the Court, we are satisfied that the effect would be to instruct the jury that the unauthorized act of the trustees could not be validated by ratification on the part of the district, and on this ground, we think, this and the fourth request were properly denied. The fifth request has already been disposed of. The sixth request was properly refused, under Ch. 23 of the Comp. Stat. The title to the land is in the district, not the trustees. Comp. Stat. Ch. 23, Sec. 64, Subd. 8. The .trustees in the absence of authority could not mortgage the real estate of the district, and there is not an item of evidence to show any authority from the district, or that the district ever took any action with regard to it. • The instrument of record as a mortgage was void, and should not have been received in evidence, nor does it come within the terms of the act of 1860. Sess. Laws 1860, page 216. The seventh request was properly denied: the indebtedness in question was for the erection of a school house for the district. To the extent of $1000, at least, the trustees had previous authority from the district, and for the balance were legally liable to the persons holding the claims in question; where the district, in district meeting, with a knowledge of the facts, ratified the acts of the trustees, by which the indebtedness was incurred on its behalf, the rights of the parties instantly changed, and at least as between the district and the trustees, the former became solely liable, and the action ratifying the proceedings of the trustees could not be rescinded; the 6th subd. of sec. 64, ch. 23, Comp. Stat., page 358, does not extend to a case affecting vested private rights. Bailey vs. Crane, 21 Pick. 323; 1 Smith's Lea. Cas. 875; Mumford vs. Freeman, 8 Minn. 432. The eighth request as an abstract proposition is correct, but — 40 — under the views we have expressed in the consideration of the third request must be entirely immaterial, since no inherent defect of power in the district to authorize the doing of the act at the time it was done existed. The ninth request is entirely disposed of by the conclusion we have arrived at in the seventh request. The plaintiff’s counsel urges that these requests were not presented to the Court, or requested to be given in charge until after the Judge had finished his instructions to the jury, therefore the Court was at liberty to disregard them under the 34th rule of the District Court.’ The rule referred to is as follows: “ The points on which a party desires the jury to be instructed must be furnished in'writing to the Court before' he commences his argument to the jury, or the same may be disregarded. ” This rule is permissive only, and if the Court sees proper, it may refuse to entertain the request of counsel to charge specifically, unless the points are submitted within the time prescribed by the rule; but if the points are entertained, it is a waiver of the rule, and it becomes the duty of the Court to charge upon the propositions submitted. In this instance no objection was taken by the counsel for the resj>ondent to the submission of the points in the Court below, and the Court does not seem to have acted under the rule, but charged specifically upon the points submitted, and allowed ari exception to the charge upon each point. The exceptions therefore must be disposed of on their merits. ¥e are not informed from the paper book in this case, whether there was a verdict in the case or not, or whether the appeal is from a judgment, or from an order denying a new-trial; but as the plaintiff interposes no objection, we presume the appeal was regular, and as wé see no error in the proceedings of the Court below for which a new trial should be granted, we think the order or judgment appealed from should be affirmed.