DocketNumber: Docket No. 123
Citation Numbers: 170 Mich. 250
Judges: Bird, Blair, Brooke, Moalvav, Moore, Ostrander, Steere, Stone
Filed Date: 5/31/1912
Status: Precedential
Modified Date: 9/8/2022
(dissenting). Plaintiff declared upon an express contract, by the terms of which, it is alleged, she was employed to teach the district school for four months, beginning September 6, 1909, at the rate of $42 per month. She alleges performance of the contract on her part, demand for $168 salary, and the refusal of defendant to pay her. Under the plea of the general issue, defendant gave notice that it would prove that it never made any contract whatever as required by law with the plaintiff. That plaintiff taught the school for the term is admitted. It appears that at the school meeting held in the district in July, 1909, Thomas Braman appeared to have been elected director of the school district; that he immediately qualified for the office; but that one Joseph Losinger, who was then director and a candidate for reelection, claimed, at least, that Braman had not been elected. It seems that quo warranto proceedings were instituted in August, 1909, by Braman against Losinger. It appears to be conceded that Braman was duly elected and, later in the year, having obtained possession of the books, acted as director. The other officers of the school district were Randall Pry and M. E. Alverson. Alverson was the moderator, and Pry was the treasurer. Losinger, Alverson, and Pry, probably early in August, con-
“The meeting of district board of district No. 1, of Reynolds, held on the sixth day of August, 1909; present, R. Fry and M. E. Alverson, who decided to hire Hazel Chalmers to teach four months school.”
It is not signed nor attested by any one. The contract drawn by Losinger is in the usual form, dated August 19, 1909, and signed by the plaintiff as teacher and by R. Fry and M. E. Alverson, district board. Losinger at first signed it and took it to the plaintiff for her signature, but before she signed it, and to her knowledge, he erased his name, telling her that there was some contention as to who was director, and that it was thought best that his name did not appear, inasmuch as it was not necessary. Plaintiff saw Alverson’s name signed to the contract and took it for granted that he had signed it, and plaintiff testified that she had .a conversation with Mr. Alverson afterwards, who said to her that he was away from home at the time the contract was brought for his signature, and he authorized his wife to sign it when it did come, and she signed it. Plaintiff knew there was a contention over the office of director, and learned at the end of the first month that she could not get an order for her pay. The director, Braman, testified that as soon as the books came into his possession he had a conversation with the plaintiff, showing her a letter from the superintendent of public instruction, which she read. The letter was not produced at the trial, and we have no knowledge of what it contained;
The court instructed the jury that the plaintiff was entitled to recover'and directed a verdict for the contract price of the service, with interest. Some of the assignments of error are based upon rulings admitting testimony, including the ruling which admitted the contract in evidence; but the controlling question relates to the validity of the contract, which, as plaintiff knew, was signed by but two members of the board, and which she alleges in her declaration to have been made by a majority of the district board
The statute (Act No. 146, Pub. Acts 1901, § 1) provides:
“ The district board shall hire and contract with such duly qualified teachers as may be required; and all contracts shall be in writing and signed by a majority of the board in behalf of the district. Said contracts shall specify the wageB agreed upon,” etc.
So far as it is important here, this section of the statute reads as it did in the law of 1881 (chap. 3, § 13, Act No. 164, Pub. Acts 1881 [ 2 Comp. Laws, § 4678] ), and it was held, in Hazen v. Lerche, 47 Mich. 626 (11 N. W. 413 ), in a mandamus proceeding to compel the assessor of a school district to pay an order for a teacher’s salary, that the fact that the relator was hired by two members of the school board, without calling any meeting of the board and without consultation with the respondent or his knowledge, was conclusive of the right of relator to the writ. The decision turns in part upon section 6 of the statute (chap.
“A contract valid on its face, actually carried out in full with the acquiescence of all concerned, cannot be subsequently repudiated. The board cannot, by abstaining from holding meetings, and from doing its duty, set up its own wrong in defense of an honest claim.”
In Cowley v. School District, 130 Mich. 634 (90 N. W. 680), there was no performance of his contract by the teacher and no ratification thereof by official action of the board. As in Dozen v. Lerche, the plaintiff relied, and was obliged to do so, upon the validity of the contract.
In the case at bar, we have a contract which on its face is presumptively valid, and no error was committed in receiving it in evidence. If the de facto director had joined in making it or in the action of the district board authorizing it, we should be required to determine whether such action was lawful. But he expressly refused to act, the de jure director was excluded, and no official action sufficient to bind the school district in the first instance was taken. The question, then, is whether the contract was ratified and became binding upon the district by good-faith performance on the part of the plaintiff and acquiescence on the part of the district and its officers. It cannot be said that plaintiff had no notice of the infirmity of the contract. Although she testified that she was told it was all right, she knew that but two officers of the district professed to have taken any official action in the premises. She knew later, and soon after beginning her work, that the director would not draw orders for her pay. She assumed to decide for herself that the district was bound. No official action of the director in ratification of the contract is shown. At most, he personally took advantage of the situation and sent his children to the school. Undoubtedly, such a corporation as the defendant may, indirectly, by acts of recognition or acqui
The case seems a hard one, but we feel obliged to reverse the judgment, granting a new trial if plaintiff shall be thereto advised.