Butler v. Regents of the University , 32 Wis. 124 ( 1873 )

I/YON, J.

The learned counsel for the defendants has argued with great ingenuity that the plaintiff was a public officer, and not a mere servant or employee of the bbard of regents by whom he was appointed a professor in the university; that the act of 1866 (ch. 114) abolished the old corporation known as “the regents of the university of Wisconsin,” and established in its stead a new and different corporation designated by the same name; and that the plaintiff’s term of office as a professor necessarily terminated with the life of the corporation which elected him. We are unable to agree with the counsel on his first proposition. We do not think that a professor in the university is a public officer in any sense that excludes the existence of a contract relation between himself and the board of regents that employed him, in respect to such employment. It seems to us that he stands in the same relation to the board that a teacher in a public school occupies with respect to the school district by which such teacher is employed; and that is purely a contract relation. If this view is correct (and we must hold it to be so), it is quite immaterial whether the corporate body which employed the plaintiff, was, or was not, dissolved or abolished by the act of 1866, because that act expressly provides that all contracts made by the old board of regents shall be assumed and discharged by the new board. (Sec. 6.)

The first employment of the plaintiff in 1858 was terminated in July, 1860, by the action of the board in July, 1859. But that action applied only to the employment of 1858, so far as it affected the plaintiff, and did not fix or limit the terms of professors thereafter employed. No other action having been taken on the subject, the employment of the plaintiff as a professor in July, 1860, was for an indefinite time, and could only be terminated by notice given by either party to the other that he or they elected to terminate the contract, and then only from the time of giving such notice. No such notice was given by the regents until after October 1st, 1866.

The plaintiff is therefore entitled to recover the unpaid salary for the quarter ending October 1, 1866, less the admitted counterclaim, unless such right is defeated by the resolution of October 3, 1866, by which the plaintiff is bound, having ac-' cepted employment under it, or unless he is concluded by the receipt of June 30, 1867, which is in form a receipt in full for his services as professor to that date. While the plaintiff cannot, under the resolution of October 3d, recover the increased salary given by the neyr contract, we find nothing in the resolution which at all affects his right to recover his salary for that quarter under the contract and employment of 1860. The substance of the whole matter seems to be, that the plaintiff had earned $250 under the old contract, when the board of regents put an end to that contract and made a new one with him, by which they agreed to pay him $1,500 for his services during the balance of the collegiate year.

The court refused several instructions asked by counsel for the'defendants, and gave several instructions, all relating to the foregoing propositions. But in my opinion all these instructions are quite immaterial. I think that the undisputed facts in the case show that the plaintiff is entitled to recover unless he is -defeated by the receipt of June 30, 1867, and that the only question of fact for the jury was, whether that receipt was given under circumstances which make it conclusive against the plaintiff. The substance of several instructions given to the jury relative to this receipt, is contained in the third instruction, which is as follows :

“ If, at the time the plaintiff signed the receipt in evidence, he supposed and understood it to relate only to his salary due under the employment of October 3, 1866, and that it had nothing to do with his claim for his previous services under his employment by the old board of regents, and if he was not aware that it contained the words ‘ in full for his services as professor to date.’ then the receipt is no bar to the recovery of the amount claimed in this action.”

We think that this is a fair and correct statement of the law on the subject. In the view we have taken of this case, it is unnecessary to state more fully the instructions which the learned circuit judge gave, or refused to give to the jury. We find no material error in the instructions given, or in the refusal to give those which were refused, of which the defendant can justly complain. The judgment of the circuit court must be affirmed.

By the Court.— Judgment affirmed.