74 Ind. 127 | Ind. | 1881
The appellant for the first time challenges the sufficiency of the complaint by the assignment of errors in this court. The first paragraph of the complaint is confessedly bad, and we dismiss it from consideration. If the second is bad, the appellant’s assignment must prevail; if good, the assignment must fail; for, if there is one good paragraph of a complaint, an assignment that the complaint does not state facts sufficient to constitute a cause of action will be unavailing.
The complaint is based upon a written contract wherein the appellee agrees to teach school for twenty-six weeks, of' five days each, in district number two of the township, commencing on the 17th day of September, 1877 ; that she will keep a faithful record of the daily attendance of pupils, and in all respects conform to the requirements of the school law. The township, in consideration of the appellee’s promises, agrees to furnish and keep in repair school-house and
It is insisted that the complaint ought to be held bad, because the twenty-six weeks, which the appellee agreed to teach, had not expired when the complaint was filed. It is, shown by the record that the complaint was filed before the expiration of that time, but does not appear that any summons was issued or served. The appearance of appellant
It is contended that the complaint is bad, for the reason that it does not show a filing, or an excuse for not filing, the report required of the teacher. It is argued that the filing of the report with the trustee was a condition precedent, of which strict performance was required. The complaint does not very fully show either performance or an excuse for nonperformance of this condition, but we think it was so aided by the finding that we can not now pronounce against it. Many defects which a demurrer would reach are aided by a verdict, and the finding of the court must, in this respect, be given the same effect as the verdict of a jury. Indianapolis, etc., R. R. Co. v. McCaffery, 72 Ind. 294; Parker v. Clayton, 72 Ind. 307; Newman v. Perrill, 73 Ind. 153.
The complaint is next assailed upon the ground that, as it was the duty of the teacher to preserve the school-house from destruction by fire, and as it burned, she is not entitled to recover. The statement of the argument supplies the refutation. We have not, it is proper to add, stated the argument in the language used by counsel, but we have stated it in substance and effect.
An objection of a more important nature than those we
We find one good paragraph of the complaint, and must, therefore, rule against appellant on the questions made up)on the compfiaint. Firestone v. Daniels, 71 Ind. 570.
The remaining questions are those arising up)on the error assigned upon the ruling denying a new trial.
The meaning to be assigned to the clause of the contract providing that the township) “agrees to pay the said Ada Hay, ■for services as teacher of said school, the sum of $290.50, •or such portion thereof as shall be due said teacher at $2.25 per day, as above agreed upon, for services she actually performed,” is not so narrow and stringent as that for which •appellant contends. The appellant contends that, no matter what may prevent the teacher from actually conducting the school, her right to compensation must be confined to the days in which the school is actually taught by her. Notwithstanding the clause quoted, we are clear that the appellee is entitled to compensation, if .the failure to aet-ually
Construing the contract as not precluding a recovery where actual performance was prevented by the act or omission of the appellant, the remaining question is whether the evidence shows that performance was prevented by something wrongfully done or omitted by the township trustee.
We are satisfied, from a careful reading of the evidence, that the court did not err in accepting the testimony of the appellee as the correct statement of the material facts. From the appellee’s testimony it appears that the school-house was accidentally destroyed by fire; that, upon discovering that the house had been destroyed, she notified the school director of' the district; that the director instructed her to procure a house in which to conduct the school; that she did procure-a church building for that purpose; that the trustee was notified that she had secured the church building, but that no fuel or furniture was -furnished, although the trustee promised to furnish them. No pupils came to the church, and this fact was, reported to the trustee, but nothing was done-by him towards furnishing either furniture or fuel, nor was the appellee informed that her services were dispensed with, but she was put off from time to time by promises to provide house, furniture and fuel. One of the witnesses for the appellee notified the trustee that she, the appellee, was ready and willing to teach the school, and that she would demand compensation for the full term, and to this witness dilatory excuses were given by the trustee. We think this evidence showed that actual performance on the part of appellee was. prevented by the appellant’s officers, and that a recovery can not be defeated upon the ground here relied upon by appellant.
Appellee, as excusing her failure to file a report, testified" that she could not make one because “the data for making-it were burned with the school-house.’’ It is insisted that
The judgment is affirmed, at costs of appellant.