Thompson v. School District No. 4, Township 29, Range 22, 71 Mo. 495

Thompson v. School District No. 4, Township 29, Range 22

71 Mo. 495 | Mo. | 1880

Sherwood, O. J.

This case was here before, and is reported in 61 Mo. 176, at which time the principles controlling cases of this sort were discussed. On return of the cause to the circuit court, an amended petition was filed July 25th, 1876, and the present defendant was at its request, made a party, and the suit then proceeded against the Board of Education of Springfield, Mo., as well as the present defendant.

i. entry op apschoot,a District as dependant. 1. There is no merit in the point that the entry of the appearance of the defendant was unauthorized. It was n°f necessary that a formal meeting of defendant’s school board should have keen ha(i authorizing, of record, the appearance of defendant to the action. J. H. Show and the other directors signed the request that defendant, if necessary, be made party to the suit, and J. EL Show appeared and filed a demurrer, and upon that being overruled, filed, as attorney, the answer of the district. In addition to that, all the directors were present as witnesses during the trial of the cause. In such circumstances, it is quite too late for them to raise such an objection as was attempted in the lower court. Managing officers of other corporations may engage the services of attorneys without express delegation of power or formal resolutions to that effect. Western Bank v. Gilstrap, 45 Mo. 419; Turner v. C. & D. M. C. R. R., 51 Mo. 501; Southgate v. A. & P. R. R., 61 Mo. 89, and no good reason is perceived why the same rule should not obtain in instances like the present one. Exigencies may arise, even in the concern's of a school board, which would compel the immediate employment of an attorney, when delay might prove greatly detrimental to the interests of the board. We, therefore, hold the reason of the rule above noted, applies as well here as in other instances. Of course, if we concede the power, without formal reso*500lution, to employ an attorney, the usual results of such employment will follow as a necessary consequence.

2. practice,plead™s-. 2. The petition in this case cannot be commended or deemed valuable as a precedent, and certainly argues no great familiarity with Chitty. In one and the same count two different causes of action, against two defendants are blended in great confusion. But the defendant did not raise either of these points by demurrer’, and if they had been thus raised, would have been waived by answering over. Repeated adjudications of this court have settled this.

3. limitations. 3. This suit was brought on a verbal contract for services as a teacher and for the rent of a school-house, in the years 1867, 1868 and 1869. There is not the .slightest pretense for the assertion that the suit is based on the orders attached and referred to in the petition, since the orders are referred to only for the purpose of showing the amount due plaintiff, and not for the purpose of declaring on them as a cause of action. This being the case, as the petition was not amended nor the present, defendant made party thereto, till July 25th, 1876, it must be apparent that the statute of limitations, five years, was available to the defendant as a bar to the actiou. Had the suit been instituted on the school orders, it is probable a' different question might be presented, one whose present determination would, obviously, be premature. But treating the suit as brought on the verbal contract, and that over five years elapsed .between the years 1869 and the amending of the petition, how is the defendant -to avail itself of such statutory bar in the face of such a remarkable and singularly worded admission as. this contained in the bill of exceptions ? “ It is here admitted by thé plaintiff' and defendant for the purpose of this bill of exceptions, that other proof was made which was sufficient to sustain the material allegations of plaintiff’s petition, and that District No. 4 was liable for three-tenths, and the Board of Education of Springfield for seven-tenths if liable, or each *501one for all, if the finding should be that way.” It would seem in one view from the language quoted, that the bar of the statute had been in some way overcome by the testimony adduced. But in another view, the language employed may be only equivalent to this, that, aside from the defense of the statute set up in the answer, plaintiff had made sufficient proof of the mere allegations of the petition, leaving the statutory bar which the pleadings on their face showed to be well pleaded, untouched and unassailed by the testimony adduced. If the latter view is the correct one to take of the singular phraseology quoted, then so-far as the present form of action is concerned, the statute of five years is a complete bar.

i. interest. 4. The judgment must be reversed for the reason that the verdict in favor of the plaintiff is for too large a sum. The verdict returned July 31st, 1876, was for $738. The amount claimed was only $580 and interest. No interest would be allowable in a case of this kind until after demand made. 1 Wag. Stat., § 1, p. 782; Southgate v. Railroad, supra. It is alleged that demand was made of defendant’s clerk; but when ? We cannot assume in the absence of any date given that it was before defendant was voluntarily made party to the action. Interest was allowed by the jury at six per cent for over four years on $580, whereas, only five days elapsed between the amendment of the petition and the return of the verdict.

The verdict was too large, also, by reason of two other considerations. The petition informs us what sections composed sub-district No. 3, in the year 1869, when the disorganization took place, but what sections composed that sub-district in the years 1867 and 1868, when a portion of the indebtedness accrued we are not informed.

5. practice: juagment Again, it is not pretended in the petition that defendant is liable for the whole amount sued for, $580, but only *’or “ proportionate liability,” and that to be established “ by proofs on trial.” The *502jury found in favor of the other defendant, the Board of Education of Springfield, and evidently against the present' defendant for the full amount of the principal, but made a miscalculation as to interest. The judgment will be reversed and the cause remanded.

All concur.