Carpenter v. Nashua , 58 N.H. 37 ( 1876 )

The only question raised is, whether the road was constructed by the defendants. They claim that they are not liable for damage done the plaintiff by an improper construction of the road, because Mitchell's contract for building it was not authorized by the city councils, but only by a committee of the board of mayor and aldermen, who had no power to make such a contract. The road was legally laid out; it was built; the city paid for building it; they included it in one of the highway districts of the city; they allow it's to be open for public travel, and to be used as a highway; — this is an acceptance of the work, a ratification of the construction and of the contract therefor. By such a ratification the contract was adopted as the contract of the city, and the work of the builder became their work, as if it had been duly authorized before it was done; and they are not relieved, by an original want of authority or formality in the contract, from liability for damage done a land-owner by its improper construction. If the plaintiff had been injured in her person by the defective construction of the road while travelling upon it, the defence here set up would be no answer to her claim. The defendants' ratification of its construction must be equally effective, whether it be her person or her property that is injured by the defect in its construction. There must be

Judgment on the report for the plaintiff.

SAWYER, J., did not sit.