Armstrong v. School District , 1885 Mo. App. LEXIS 249 ( 1885 )

Philips. P. J.

I. In the consideration of this case it seems to have been lost sight of by the trial court that the action is to recover the stipulated price for the month and one-half only of the term after the plaintiff was discharged or interfered with by the directors.

For the time he actually taught the school, the defendant paid him in full. No matter then what may have been plaintiff’s derelictions or delinquencies in keeping or performing his contract during the four and one-half months he taught the school, the services were accepted, adjusted and paid for by defendant. It thereby recognized the performance of the contract up to that time; and any matters going to show failure to perform during that period were concluded.

It, therefore, becomes at once manifest that the position assumed in argument on this appeal by respondent’s counsel, that he is not contending for the authority of the board of directors to dismiss and turn away the teacher, but only for the right to show in defence to the action on the contract that plaintiff has not performed on his part its stipulations, is wholly untenable. Having accepted and paid for his services for the foi\r and one-half months, whether he kept the terms of the contract during that period is wholly outside of the real issue presented by the complaint. The issue is, whether he was ready and willing to proceed with the performance of the contract for the remaining one and one-half months, and whether defendant had complied for this period.

How is it legally possible for defendant to interpose or establish the defence that plaintiff did not keep and perform his contract for the month and one-half sued for, by showing that he did not keep school six hours a day, or keep a register, or maintain discipline, and suppress indecent and immoral conduct among the scholars during the four and one-half months preceding, for which it paid him and fully settled ? He was not permitted to teach at all during the time for which he sues. How, then, can it be shown that he did not keep school six hours a day, or maintain order or prevent misconduct, etc. ?

The mere statement of the absurdity involved in the defence, now invoked, shows that the verdict of the jury was made to turn on the assumption that for the past misconduct of the plaintiff the board of directors had the power and right to dismiss him entirely, and put an end to the contract. The trial proceeded throughout on this theory.

The first instruction given on behalf of defendant, after reciting the derelictions and delinquencies of plaintiff in conducting the school during the time he taught, concludes as follows: “ Then such failures and neglects, on the part of the plaintiff, constitute a breach of his contract, and justified said directors in discharging him from the service of such district, as such teacher. ’ ’ The second instruction, likewise, after enumerating the instances of plaintiff’s failure,” to enforce between the male and female scholars of his school the observance of the rules of decorum and decency, or persistently and often failed, without reasonable excuse, to teach such school six hours a day * * * these failures gave just cause to said directors for dismissing or discharging him from the service of such district in such school * * * and that such directors did so dismiss him before the end of the term or session for which he was employed as such teacher, then plaintiff cannot recover in this suit any wages for the remainder of such term or time of employment after such dismissal or discharge.”

' And as yet more conclusive as to the theory on which the case was tried by the court, in instruction number thirteen, the court told the jury, that “the question for the .jury to decide being whether plaintiff had so far failed to' perform his contract as elsewhere specified in instructions, as to justify the district, "through its board of directors, in dismissing him. ”

This case was tried before the publication of the opinion, delivered by Martin, C., in Arnold v. School District (78 Mo. 226). Had the learned judge who tried the case now at bar, had the light of this decision before him, he would not have tried the case on the assumption that the board of directors had the right, without notice or trial, to dismiss the plaintiff and put an end to his contract. It is expressly held in the case, supra, that the power of dismissal for “incompetency or immorality proven” is lodged by the statute with the county school commissioner, and not with the board of directors.

II. The court also erred in withdrawing from the jury the proof made by plaintiff, touching the barring of the school house door, and the carrying away the stove pipe and drum. It was within the issues tendered by the statement. It was proof of the interruption and interference with the prosecution of the contract. Whether the directors, or either of them did it, was a question of fact for the jury. It is a very significant fact that the director upon whom rested the imputation of this misconduct “was conspicuous, ” at the trial, “by his absence,” while his fellow directors were in attendance and testifying.

III. It is not deemed important to review the instructions given and refused. They were throughout, on defendant’s behalf, constructed on a misconception of the issues and the power of the board of directors. On a re-trial, with the aid of the opinion in Arnold v. School District, supra, and this opinion, the court should have no difficulty in framing proper declarations of law.

The judgment of the circuit courtis reversed, and the cause is remanded.

All concur.