School District No. 26 v. McComb , 18 Colo. 240 ( 1893 )

Mr. Justice Goddard

delivered the opinion of the court.

The appellant’s contention is'that the contract sued on is not valid and binding upon the school district, because it is not shown that it was made, or authorized to be made, and signed by the directors, while in session as a board.

This objection was not available to the appellant. The contract is set out in hcec verba in the complaint, and the answer denying its execution is not verified. Its due execution is thereby admitted. “ When an action is brought upon a written instrument, and the complaint contains a copy of such instrument, or a copy is annexed thereto, the genuineness and due execution of such instrument is deemed admitted, unless the answer denying the same be verified.” Code of 1887, p. 113, § 62.

Nor is the effect of this admission changed or affected by the fact that the counsel of appellee tried the case below on the theory that the execution of the contract was an open question. It being unnecessary under'the pleadings to introduce the contract in evidence to support appellee’s cause of action, it is immaterial whether it ivas admitted without sufficient preliminary proof that the manner of its execution was in every respect formal and legal, or not; all the evidence introduced for that purpose, as well as evidence of verbal statements of the individual directors as to the employment of appellee, was irrelevant and outside of any issue in the case, and could in no way prejudice appellant’s rights before the jury.

• The validity of the contract for the purposes of this case being thus admitted, the only remaining question is, did -the court err in refusing to permit appellant to introduce evidence to show a justification for the dismissal of appellee ?

The statute expressly provides (Gen. Stats., p. 898, § 3055) that, “ No teacher shall be dismissed without due notice, and upon good cause shown.” It is not claimed that the directors complied, or attempted to comply, with this provision, but it appears from the facts in evidence that they summarily and without notice or hearing dismissed appellee from her employment; therefore, whatever the actual grounds for such dismissal were, if any, they could not be shown as a justification of their conduct in this action, unless ascertained and acted upon in the manner prescribed by the statute.

We find no error that could prejudice appellant’s rights in the rulings of the court upon the admission or rejection of evidence on the trial of the cause, and as the evidence admitted clearly sustains the verdict of the jury, the judgment of the court below is affirmed.

Affirmed.