20 Vt. 487 | Vt. | 1848
The opinion of the court was delivered by
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
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
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.
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
The result is, that the judgment of the county court is affirmed, and the writ of mandamus denied.