The opinion of the court was delivered by

Kellogg, J.

It has been urged in the argument, that the county court improperly admitted the record of the district meeting of the 27th of October, 1845, to prove the appointment of Yorke as committee for that year, by whom the plaintiff was hired as a teacher, inasmuch as it does not appear by the record, that any application *492in writing for that meeting was made to the clerk, who warned the same. This objection, we think, is unsound. It appears by the papers before us, that it was the annual meeting of the district, — a meeting which the district is by law required to hold; and it may well be questioned, whether, for such a meeting, any application to the clerk in writing, or otherwise, to call the meeting, is necessary. But even if it were necessary, we think the county court were correct, in holding that the law would presume such application to have been made. We are however of the opinion, that no such application was necessary. The provision of the statute, which makes it the duty of the clerk to warn a meeting of the district, upon a written application to him for that purpose, was intended to act compulsorily upon the clerk, and not to withhold from him the power of calling meetings without such application. If, then, the meeting of the Q7th of October were duly warned by the clerk without any application in writing, and upon his own mere suggestion, and a meeting were held pursuant to the warning, it would, in the judgment of the court, be a legal and valid meeting. Such being the view we entertain of the subject, it follows, that the county court properly rejected the evidence, offered to repel the presumption of their having been a written application made to the clerk to warn the meeting.

Equally untenable is the objection, that the meeting of the 27th of October was illegal for want of sufficient notice, and that consequently the record of that meeting should have been excluded. The notice for the meeting was made and posted on the 20th of October, and the time therein appointed for the meeting the 27th of the same month. This, we think, was sufficient. It is well settled, that, in computing time in the service of process, either the day of the service or the return day of the process is to be counted ; and we see no reason, why the same rule should not be applied to a case like the present. Applying that rule, the notice will be found to. have been all that the law requires. It is farther insisted, that the court erred in rejecting the evidence offered, to prove that a majority of the voters of the district were dissatisfied with the plaintiff, and that the plaintiff, and Yorke, the committee, knew it. This objection is based upon the supposition, that the dissatisfaction of a majority of the district, if known to the plaintiff and the committee at the time the *493plaintiff was employed, would be sufficient to annul the contract made with the plaintiff. This we believe to be an erroneous view of the subject. The power of employing and dismissing teachers in school districts is, by law, vested in the prudential committee ; and the district have no power or control over the subject. Nor can the committee dismiss a teacher, except for good and sufficient cause. And it is worthy of remark, that in the case at bar there was no offer to prove, nor even pretence made, that the plaintiff was either incompetent, or unfaithful. It was, simply, that a majority of the district were opposed to him. This evidence was irrelevant and was properly excluded.

It is also contended, that the court should have admitted the evidence offered, of the efforts made by Whitney and Parker to have the plaintiff discontinue the school. To determine whether the evidence thus offered was properly rejected, it becomes necessary to inquire, what authority those individuals had to interfere to discharge the plaintiff from his employment. Were Whitney and Parker legally appointed committee men, for the year succeeding the 27th of October, 1845 ? If not, they had no more authority to interfere in the matter, than any private individual of the district. The district, at their annual meeting, had the right to appoint one or three individuals for their prudential committee; and they made their election by appointing one only, Mr. Yorke. On the 18th of December, 1845, at a special meeting called for the purpose, the district appointed Whitney and Parker committee, in addition to the one which they' appointed at the annual meeting in October previous. At this time no vacancy had occurred in the committee. Mr. Yorke was residing within the district, and in the discharge of the duties of his office. Under these circumstances we think the appointment of the additional committee was unauthorized by law, and consequently conferred no authority upon them. The district, at their annual meeting, having elected to appoint but one for committee for the ensuing year, their power over the subject became thereby exhausted, and they could not resume it, until a vacancy should occur by the death, resignation, or removal of Yorke, or some disability to perform the duties of the office. No such disability having occurred, the appointment of the additional committee was unauthorized, and consequently the evidence was properly rejected.

*494But it is said, that the plaintiff should not have been allowed to recover for services rendered after the 18th of December, inasmuch as the district on that day voted to have the school discontinued, and this was made Icnown to the plaintiff This objection is founded upon the supposition, that one of the contracting parties, without the consent of the other, and without any sufficient cause, could put an end to the contract and absolve themselves frpm farther liability, — a proposition, which, we think, cannot be sustained. If the plaintiff contracted with the proper officer of the district, who had competent authority so to contract, (all which manifestly appears in the case,) he is entitled to all the benefit of the contract, unless he have relinquished the same, or been guilty of some dereliction of duty, or failure to perform his part of the contract.

It is insisted, that the plaintiff ought not to be allowed to recover any thing on account of his failure to keep the school the entire period for which he contracted. The case finds, that he was absent from the school at one time two days, without the previous consent of the committee, but that the committee, when informed of his absence, was satisfied with it. This, surely, could not be such a failure to perform the contract, as would defeat the plaintiff’s right of recovery. Nor should his closing the school a few days before the expiration of the time agreed upon by the parties defeat his ifight to recover, when taken in connection with the occasion, which compelled him to close it, — the sickness of his family, that required his immediate personal attention. When the cause was made known to Yorke, the committee, he was entirely satisfied, and the county court have found the fact, that he had a reasonable excuse for closing the school. The failure to serve the entire time of the contract, under such circumstances, would not deprive him of the right to recover for the time he actually served the district. This disposes of the several objections taken upon the trial of the case in the court below.

But the defendant has also filed his petition in this court, praying that a mandamus may be issued, requiring the plaintiff, who then was clerk of the district, to amend the district records, so that it may appear, what application was made to him, as clerk of the school district, to call the meeting of the 27th of October, 1845, and whether the same was in writing, or whether any application was *495made to him. From the opinion which has been announced upon the several questions raised upon the trial of the case in the court below, it will be seen, that we regard it entirely immaterial, whether the record is amended in the manner sought by this application, or not, — as in neither event would it affect the legality of the district meeting. For this cause, therefore, the writ must be denied, — and also for the farther reason, that the plaintiff has ceased to be clerk of the district, and resides without the jurisdiction of this court.

The result is, that the judgment of the county court is affirmed, and the writ of mandamus denied.