Armstrong v. School District No. 3

Philips, P. J.

This cause would seem to be contested far beyond its merits. It is a subject of regret that the defendant could not accept the decision of this court, and adjust this controversy without further trial. The case must, however, so long as it remains in court, be tried according to law.

I. We see no just ground for questioning the existence of the contract upon which the plaintiff entered upon the office of teacher in the district. The uncontradicted evidence is, that the plaintiff and all three of the directors signed the. contract, before plaintiff entered upon its performance. It was taken and kept by the clerk of the board, as of papers on file by the board. This made out a prima-facie case, and entitled the plaintiff to introduce it in evidence. Rev. Stat., sect. 7046; Crane v. Bennington School District, 28 N. W. Rep. 106. The burden of proof thereafter would shift to the defendant to show that it was not the contract, or that it was not binding. What other proof could he have introduced than the testimony of the board of directors themselves ? This evidence shows that they did meet prior to signing this contract, in the road near the schoolhouse, and talked over the matter of employing the plaintiff as teacher. One of the directors remarked to the other two, that he did not like the terms of compensation ; but left, with the statement made to the others, "whatever you do I will agree to.” The plaintiff thereafter drew up the contract, signed it, and gave it to one of the two , named above, who signed it, and took it to the other of said two, who signed it, and he took it to the third member, who also signed it. It was then filed, with the plaintiff’s certificate of qualification, among the papers of the board, and kept there until the trial of this cause in the justice’s court, where it was produced by the defendant, and by it used in evidence as the contract. Under this contract the plaintiff taught the school for four and a half months, of the six months’ term it called for. The board recognized the contract in every conceivable form. They drew up written directions, or rules, for the government of the school, and delivered them to the plaintiff as the teacher. They drew warrants in his favor and paid him as such teacher. After all this, and after the cause has been through the justice’s court, and the circuit court, and the court of appeals, for the first time is the validity of the contract called in question; and it was left to the jury to say whether it is a contract, inasmuch as there was no record entry in the minutes of the board of directors showing its adoption, and there is some question as to whether it was signed by two of the board at the same time, or whether there -was a concurrence in point of time in their assent to its terms.

The case of Johnson v. School District (67 Mo. 319) is not relevant. That was an attempt on the part of two directors to bind the district to pay for certain maps, globes, etc. Without any prior consultation, and at different times, and separately, two of the directors signed an order, for the amount gí these articles, on the treasurer. The authority to make such a contract was conferred on the board by section 8, page 1243, Wagner’s Statutes, now section 7044, Revised Statutes, 1879. It was held that the order was void, because the district clerk alone was authorized to draw such order. And as there was, in fact and law, no contract made by the district board, there could be no ratification of the unauthorized act by reason of the mere use of the articles in the school. The contract under review is provided for in section 7046, Eevised Statutes: “The board shall have the power to contract with and employ legally qualified teachers for and in the name of the district. The contract shall be signed by the teacher and a majority of the directors, * * and, with the certificate of qualification, shall be filed with the district clerk.”

Under this statute the only evidence of such a contract is the written instrument itself, executed by the teacher, and, at least, two of the directors. And the only record evidence, contemplated by this statute, is the filing with the district clerk. This is more for the certainty of its keeping, and for the proper protection of the district. In Crane v. Bennington School District (supra), it is held that no record entry of the contract being authorized at a meeting of the board is required ; that when it was signed by two of the directors, after the consensus, that was sufficient. The court further say: “When it was admitted, without any dispute, that the plaintiff taught under this contract for ten weeks, with the sanction and consent of the officers, and that orders were drawn by the proper officers for his pay as such teacher, it became entirely immaterial what the book of record showed, or whether there was any corporate action in hiring him, or authorizing the contract. School district officers cannot be permitted by the law to enter into a written contract with a teacher, none of them denying its validity for ten weeks, but recognizing it by making payments, and then, after the teacher, in the utmost good faith and reliance upon the contract, has taught that length of time, discharge him without cause, and plead in bar of his payment under the contract that they never met and consulted, nor took corporate action in hiring him, or made any record in book of the execution of the contract.” And in the subsequent case of Holloway v. Ogden School District (28 N. W. Rep. 764), it is expressly held that it is not essential to the validity of the contract that the directors should sign it simultaneously. The court say : “ Plaintiff had a right to suppose his contract was valid when it was signed by a sufficient number of officers, and he was, with the personal knowledge of the whole board, permitted, and apparenty encouraged, to proceed. 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 defence of an honest claim.” Under the undisputed facts of this case, the trial court should have treated this contract as valid, and simply declared its legal effect, as such, to the jury, instead of leaving to the jury to determine whether or not it was a contract at all.

II. The only other question of any importance in this record is, what was the legal effect of the settlements made by plaintiff with some of the witnesses respecting their fees ? Did it amount to an accord and satisfaction, as pleaded and claimed by defendant ? This adjustment of witness fees was not a transaction had with defendant district, nor with any one authorized to act for it. The school board, in fact, had no authority itself to pay plaintiff any sum, or to have "paid the witnesses any sum to procure a discontinuance of the suit. It might, in recognition of and pursuant to the terms of the contract, have drawn its warrant in settlement of an agreed balance thereon. As a corporation under the statute, the board of directors are precisely what the statute has made them. They are nothing more, nothing less. They are endowed with only such powers and faculties as the statute has expressly delegated, and none other. It could appoint no agent to represent it in such matter. The witnesses did not pretend to be acting as the agents of the board. They simply, for the occasion, turned benefactors of the plaintiff, and patriots for the school district and neighborhood; and in the interest of public peace, cum amore, they yielded their claim, in part, for mileage and per diem while attending upon the judicial deliberations in this cause of local celebrity.

The defendant has cited no authority in support of its contention. The Missouri cases cited in the brief only go to the general proposition, that a party for whose use a contract is made, based upon a valid consideration, and this appearing upon the face of the contract, may sue thereon; and that this holds good in favor of those having a beneficial interest or concern therein. Such is the case of Flanagan v. Hutchison (47 Mo. 237). A was indebted to B for goods purchased. A sold to C, who promised in part payment of the purchase money, to pay B what A owed him. Held that B might sue C on this contract; for there was a privity to uphold it. But, even in this class of cases, the distinction is to be observed, so sharply put in Vrooman v. Turner (69 N. Y. 280, et seq.): “To give a third party who may derive a benefit from a performance of the promise a right of action, there must be, first, an intent by the promisee to secure some benefit to the third party; and second, some privity between the two, the promisor and the party to be benefited, and some obligation or duty owing from the former to the latter which would give him an equitable claim to the benefit of the promise or an equivalent from him personally. There must be a sufficient consideration passing between the promisor and his immediate promisee, and then the third person must adopt the promise and then bring himself into privity with the promisor, but no otherwise."’ The authorities are all one way as to this not constituting an accord and satisfaction.

In Clow v. Borst et al. (6 Johns. 37 ), "the court say: “It is held not to be a good plea of accord and satisfaction to a bond that a stranger had surrendered a tenement to a plaintiff in satisfaction of the debt, which he accepted, because the stranger was not privy to the bond, and a satisfaction given by him was not good. If this case be authority, and it does not appear ever to have been questioned, the plea in the present case is bad.” This was followed in Daniels v. Hollenback (19 Wend. 408). In Mueller v. Eno (14 N. Y. 605) the court say: “If a third person, without the authority of the plaintiff, and not in privity with him, had paidfto the defendant, in money, a full satisfaction for the breach of the warranty in question, it is well settled that such ajpayment and satisfaction would have been no defence to a suit on the warranty, and no answer to defendant’s right of recoupment. In Clow v. Borst (supra) it was held to be no defence that the plaintiff had accepted a full satisfaction from a third party. So in 4 Paige, 654, which, was a creditor’s bill founded on a judgment, a xilea that the judgment had been paid by the corporation of the City of New York as a gratuity to the complainant, a police officer, who had obtained the judgment for costs, etc., was held by the court of chancery to be bad. These cases go(yponthe principle that satisfaction by a stranger amounts to nothing. A party who lias covenanted, or promised, must perform .the agreement himself in all its legal consequences.’ And, again, in Atlantic Dock Co. v. Mayor of New York City (53 N. Y. 67), the court say: “A liability ex delicto may be extinguished by a release. It may be extinguished by payment. But a payment by a stranger, between whom and the defendant there is no privity, cannot bfe availed of. * * * It may be extinguished by an accord and satisfaction. But satisfaction by a stranger is no plea.”

That The persons who settled their witness fees with the plaintiff did not sustain the relation of privy with the defendant is too manifest to admit of debate. The concern the party must have in the pending action must be the beneficial interest that springs from privity in estate. Simply because they may chance, at the time to be taxpayers in the given district will not meet the requirements of the law. Such a doctrine would make every taxpayer in a municipal corporation a privy in every action, ex contractu or ex delicto, against the corporation. Neither can it be permitted that every citizen of the neighborhood who feels an interest in a law suit against his neighbor, or his district, can be regarded as-a privy. The law recognizes no such sentimentality. On the contrary, it should be rather the policy of the law to suppress than encourage such intermeddling, in judicial proceedings by outside parties. Indeed, it would seem a little remarkable that this defendant should avail itself of this settlement of fees entailed' upon the plaintiff by a judgment in favor of this defendant, which this court held to be erroneous, and vacated. The court erred in not directing the jury to disregard such evidence.

III. The cross-examination of the plaintiff, in the manner set out in the statement of facts, was clearly improper. The facts thus elicited constituted no matter of defence. Armstrong v. School District (19 Mo App. 462). It was neither explanatory nor contradictory of any relevant matter brought out in the examination in chief. Its only effect and office was to unduly prejudice the minds of the jury against the plaintiff ’ s cause, and to introduce a collateral and immaterial issue.

The other judges concurring, the judgment of the circuit court is reversed and the cause remanded.