Ryan v. District No. 1 , 61 Mont. 111 ( 1921 )

MR. COMMISSIONER SPENCER

prepared the opinion for the court.

On March 3, 1919, plaintiff obtained judgment against the defendant for $400, together with interest thereon from June 1, 1918, and $11.70 costs. Defendant’s motion for a new trial was denied, and appeal is from the order denying the motion and from the judgment.

The complaint alleges, in substance, the execution of a writ-[1] ten contract on June 14, 1917, by plaintiff and defendant, whereby the plaintiff agreed to teach school in district No. 1 of Powell county for a period of nine and three-fourths months beginning September 3, 1917, for a stipulated wage of $780, Or $80 per month; that plaintiff entered upon her employment in accordance with the contract, and discharged all the duties required of her until February 12, 1918, when defendant discharged her, and refused to permit her longer to continue her employment under the contract; that she fulfilled all the terms of the contract required of her, and complied in all respects with the laws of the state and rules of the school board, and that her discharge by the defendant was arbitrary, wrongful, unlawful and without cause; and that plaintiff in no wise acquiesced in the discharge, and that at all times during the period of said contract she held herself in readiness to perform. The complaint then alleges $400 as the amount due under the contract, demand, and refusal of payment.

The answer admits the execution and acceptance of the contract by both -plaintiff and defendant and the performance of its terms by plaintiff until February 11, 1918, and denies all other allegations. For affirmative defenses the defendant urges abandonment of the contract by plaintiff’s resignation, and rescission by mutual agreement of the parties and settlement of the claim sued upon by tender of warrant for $84 by defendant, and acceptance thereof by the plaintiff, all of which affirmative defenses were put in issue by reply.

A jury was expressly waived by both parties, and trial had to the court. The proceedings at the trial disclose that the only issue to be determined was whether the plaintiff voluntarily resigned and abandoned her contract, or was discharged in violation of its terms. The court resolved all doubt in favor of the plaintiff and ordered judgment accordingly. The evidence offered by the respective parties is not harmonious, nor from the standpoint of either is it entirely satisfactory. In general, it presents a conflict. The court, exercising its functions as both court and jury, found the facts in favor of the plaintiff. We think there is substantial evidence to support the finding, and hence it is not for this court to substitute its judgment for that of the court which tried the case.

We find no merit in any of the assignments of error, and therefore réeommend that the judgment and order appealed from be affirmed.

Per Curiam: For the reasons given in the foregoing opinion the judgment and order appealed from are affirmed.

Affirmed,