
    Christian J. Rauscher, Resp’t, v. William Cronk, as Trustee of School District No. 7, Towns of Ava and Western, App’lt.
    
      (Supreme Court, General Term, Fourth Department,
    
    
      Filed November 14, 1888.)
    
    
      1. Schools—Trustee—Acts op.
    When a duty is imposed by statute upon a school trustee, it is to be-assumed that when he discharges that duty he acts in behalf of the school district.
    2. Practice—Charge to jury.
    In an action to recover upon a contract, the defendant claimed that there had been a willful and intentional departure from the contract, and the judge submitted the question to the jury with an instruction that if they found in "the affirmative there could be no recovery. Held, no error.
    8. Same—Submission to jury op question op substantial compliance.
    Where there is conflicting evidence as to whether there had been a compliance with the understanding entered into between the parties, Held, that it was proper to submit to the jury to determine whether there had been a substantial compliance. Martin, J., dissenting. Follett, J., dissenting from doctrine of substantial compliance.
    Action brought in justices’ court, and after a trial there,, before a jury, the verdict was no cause of action. Thereupon the plaintiff appealed to the county court of Oneida county, and a trial was had resulting in a verdict for the plaintiff of twenty-five cents. Motion for a new trial on the minutes was made and denied, and defendant appeals from the judgment entered upon the verdict in the county court, and from the order of that court denying a motion for a new trial.
    Plaintiff, in his complaint, stated, viz.: “That the defendant, as such trustee as aforesaid, is justly indebted to this plaintiff, in a large amount, for work and labor done ■and performed by him as a mechanic, under a vote of the ■said district, in building a privy for the use of said district, and on the grounds belonging to the same, some time during the fall of 1887, no portion of which -has been paid to the plaintiff.”
    Besides the denial of the complaint, the defendant, in his answer, alleged as to the privy: “That it is not built
    according to the specifications of the resolutions of the meeting, authorizing the building of the same; that it is not double-boarded; that it is not shingled, as stated in the resolutions of the meeting; that the building is not true, one end being several inches higher than the other; that it has no door; that the fence is not seven feet high; that it is not a tight board fence; that the seat is not properly made, that the box that was to be under the seat is not under the seat, but under the floor; that there are other defects that render it entirely useless for the district; * * * that by reason of the failure of the plaintiff to build the same by the time specified, and to do the same properly, the district has sustained damages to the amount of seventy-five dol7 Jars, for which amount defendant asks judgment.”
    
      Wilson & Powers, for appl’t; (P>. E. Powers of counsel); Scripture & Backus, for resp’t; (O. P. Backus of counsel).
   Hardin, P. J.

September 30, 1887, a school meeting was held in the district. At that meeting, “ Mr. Oronk, the defendant, got up and stated the object of the meeting. He said he had called them together to see about building a privy; to see what sort of one they would build, and where they should set it. They voted to build a new one. They then went out and looked to see where they should put it. Then Mr. Dorn came in, and made a motion to put an addition of three feet on the old one, saying how it should be built.”

A resolution was offered and passed declarative of the location, size and character of the building desired, the material of which it was to be built, and the fence surrounding it. The resolution was adopted by the school meeting, and subsequently placed upon the school records by the district clerk.

Before the meeting adjourned, an auction was held in respect to the building contemplated by the resolution and the .action of the school meeting. Several bids were offered, the first one being twenty-five dollars. The person who acted as auctioneer, stated, viz.: “You have heard the paper read, and I suppose you understand it; now, give me a bid on it.”

It appears by the testimony that it was knocked off to Mr. Rauscher.

Thereafter the plaintiff commenced to comply with his bid, and erected a building which he claimed was in accordanee with the terms of the contract he had. entered into in respect to the same. It appears the defendant was present, and assented to the proceedings had in respect fo the employment of the plaintiff to build the privy in question.

We think there is nothing in chapter 538 of the Laws of 1887, which prohibits the trustee from consulting with the; taxpayers of the school district, and from taking their sense in respect to the location of the privy, and the material out of which it should be built. That chapter imposes a duty upon “ the trustee or trustees having supervision over any school district of this state.” It must be assumed that when, he discharges that duty he acts in behalf of the district. The statute further provides that “he or they shall provide-suitable and convenient water-closets or privies for each of the schools under their charge, at least two in number, which shall be entirely separated from each other, and hay ing separate means of access, and the approaches thereto-shall be separated by a substantial close fence not less than seven feet in height”

It seems to have been assumed by the defendant when he prepared his answer, which must be liberally construed inasmuch as it originated in justice’s court, that the plaintiff in performing the labor was carrying out the wish of the district.

Upon the trial there was a great variety of evidence given upon the subject of whether or no the plaintiff had performed the work, labor, and built the structure in accordance with the understanding entered into by him in the manner in which we have already stated. It is also claimed in-behalf of the defendant that there had been a willful, intentional departure from the understanding had between the párties in respect to building the structure in question.

Inasmuch as the trial judge submitted that question squarely to the jury with an instruction that if they found there had been such a willful departure or intentional deviation from the requirements of the agreement made, that there could be no recovery, the verdict establishes that there was no such willful departure, or intentional deviation.

There was also considerable evidence given upon the trial tending to show that there had not been a compliance with the understanding entered into by the parties. We think upon such conflicting evidence, it was within the province-of the jury to determine whether there had been a substantial compliance of the contract in respect to the erection of the privy.

That question was submitted to them in the charge delivered by the trial judge. We think the charge kept within the doctrine laid down in Nolan v. Whitney (88 N. Y., 648). It was there held, viz.:— - The performance of a building contract need not in all cases be literal and exact to enable the contractor to recover the consideration due upon performance, it is sufficient, if acting in good faith and intending and attempting to perform, he does so substantially. He may then recover, notwithstanding slight or trivial defects for which compensation can be made by an allowance to the other party.”

If we regard the resolution as a proposition on the part ■of the defendant, and the bid of the plaintiff as an acceptance of the proposition, thus forming a contract, it is to be observed that the resolution does not require the placing of a door upon the privy.

If, on the other hand, we have reference to the conversations and declarations held at the school meeting, as shown by evidence produced by the defendant as indicative chat the door was to be placed upon the building, we are still unable to say that the omission was' so great as to take the case ■out of the rule which we have just stated. There were ■some other defects claimed by the defendant and shown by evidence given by him upon the trial in respect to them. There was considerable conflicting evidence offered by the plaintiff, and there was evidence tending to show on two occasions, after seeing the resolution, and finding that it did not require the placing of a door upon the privy, the ■defendant declared that the plaintiff was then entitled to his pay. At folio 113, one witness says, that.the defendant declared, viz., “ that is done according to that writing, and he shall have his pay.”

In the course of the cross-examination the same witness ■says that thb defendant said “I either said that, or said that he did not “see any reason why the district should not pay him.”

Another witness, after declaring some conversation had with the defendant, says, “ when be got through he said he did not see any reason why he should not have his pay/ referring to a declaration made by the defendant.

The verdict which was rendered by the jury seems to indicate that they allowed the defendant' liberally for any defects which they found to have existed in the structure, inasmuch as they deducted from the sum which the plaintif was to receive- of eleven dollars, $10.75, rendering .a verdict for the plaintiff only for twenty-five cents. While there is no definite evidence in respect to how much it would cost to remedy the defects, we are of the opinion that the jury liberally allowed the defendant all that it would cost to remedy the defects, if not much more.

It seems to have been the sentiment of the district, as illustrated by a resolution which they passed January 11, 1888, that the defects should be remedied by the trustee, for they declared in a resolution passed that date, that 4 the trustee shall cause the same to be completed, and pay for the same, and deduct the amount so paid from the eleven dollars, which he was to receive for building the same, and pay him the balance.”

The appellant urges (sixth point) that the plaintiff cannot recover, because the school commissioner has not approved of the expense incurred, as required by chapter 538, Laws 1887. It does not appear whether or not his approval had been obtained, but the record does not show that this objection was raised in the court below; and we are unable to say that if it had been, the plaintiff could not have established an approval, and for this reason the judgment cannot be reversed on this ground.

Second. We think it was not prejudicial error to receive upon the cross-examination the fact that the door had been ■ placed upon the building, as it bore upon the question of damages, and which the jury would consider in allowing the defendant compensation for the defects, if they were of, the opinion that the contract required the furnishing of a door upon the privy.

These views lead to the conclusion that the verdict of twenty-five cents in favor of the plaintiff is sufficiently favorable to the defendant, and should be sustained.

Third. We may properly omit to pass upon the question of costs of this appeal, ana leave that question to be determined upon proof to be taken before the taxing officer. It is provided in section 6 of the school laws. 3 R. S., 7th ed., 1187, viz.: 44 In any action against a school officer, or offieers, including supervisors of towns, in respect to their duties and powers under this act, for any act performed by virtue of or under color of their offices, or for any refusal or omission to perform any duty enjoined by law and which might have been the subject of an appeal to the superintendent, no costs shall be allowed to the plaintiff, in cases where the court shall certify that it appeared on the trial that the defendant acted in good faith.” Whether the' defendant acted in good faith or not is not a question to be determined exclusively upon this appeal, so far as it relates to the question of costs. We may, therefore, properly affirm .the judgment,'leaving the question of costs to be governed by the law applicable to such a case.

Judgment of the county court of Oneida county, and the order affirmed.

Follett, J.

I concur in the result, upon the ground that the evidence was sufficient to justify the finding of the jury that defendant had accepted of the building, subject to deductions for defendants; but dissent from the doctrine of ¿4 substantial performance,” as applied to this case.

Martin, J., dissents.  