99 Pa. Super. 259 | Pa. Super. Ct. | 1930
Argued April 21, 1930. Plaintiff brought suit in assumpsit against the defendant school district for salary for a period of forty-six days alleged to be due him for services rendered as a teacher in one of the public schools of the district *261 under a written contract between him and the school district, under the terms of which he was employed to teach for the school year of eight months, beginning August 31, 1925, at a salary of $120 per month. At the trial he offered in evidence, without objection, the contract executed by himself and by the president and secretary of the school board in behalf of the school district, together with evidence that he had taught until January, 1926, when he was taken ill, and that he was not permitted to return as a teacher after he had recovered from his illness, although he was ready and willing to teach thereafter. He was paid for the actual time he taught under the alleged contract and this suit is for salary for the portion of the school term remaining after he was ready and willing to resume his duties. Defendant offered no evidence. The court directed a verdict for plaintiff for the full amount of his claim and refused defendant's point for binding instructions. Subsequently judgment was entered for defendant non obstante veredicto and this appeal by plaintiff followed.
The ground upon which the judgment was entered was that plaintiff failed to prove, or offer to prove, that he was hired to teach by the affirmative vote of a majority of the members of the board of school directors of the school district, as required by Section 403 of the Act of May 18, 1911, P.L. 309, which provides as follows: "The affirmative vote of a majority of all the members of the board of school directors of every school district in the Commonwealth, duly recorded, showing how each member voted, shall be required in order to take action on ...... appointing ...... teachers ...... fixing salaries or compensation of ...... teachers." The court below thought that Waltman v. Albany Twp. School District,
Counsel for appellant admits that plaintiff could have been required to prove that his contract of employment was authorized in the manner provided by the statute, and that if objection had been made to the introduction of the contract in evidence without proving that it was authorized by the affirmative vote of a majority of the board, it would have been the duty of the court to sustain the objection. His sole contention is that because plaintiff was permitted to introduce the contract in evidence without objection and no question was raised concerning its authorization by the board, and defendant indicated by his cross-examination of plaintiff that the defense relied upon was that the latter had abrogated the contract, defendant is precluded from questioning the validity of the contract. It is sought to distinguish the case of Waltman v. Albany Twp. School District, supra, on the ground that in that case the offer of the contract was objected to, while in the present case there was no such objection. We are not impressed by this *263
argument. The burden was on plaintiff to establish his case by the requisite legal proof. The failure of defendant to object to the admission of the written agreement in evidence was no waiver of its right to challenge the sufficiency of plaintiff's evidence by a point for binding instructions, nor did the cross-examination of plaintiff which indicated defendant's purpose to show that plaintiff had abrogated the agreement deprive it of its right to interpose any defense it had. This is not a case in which appellant is attempting on appeal to shift its position from that taken in the court below. In our opinion the fact that the offer of the contract in evidence in the court below was not objected to by defendant is no ground upon which plaintiff may escape the effect of the principle followed in that decision. That case stands on the broad ground that the law regulating public employment and the expenditure of public money cannot be ignored (See McCandless v. Summit Twp. School District,
The judgment is reversed and a new trial awarded.
KELLER, J., concurs in the judgment.