28 Mo. App. 169 | Mo. Ct. App. | 1887
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
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
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
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 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
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
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.