1 OF TOWNSHIP OF LOCKE, Western Pub. House v. School Dist. No. 1 of Locke Tp.

• Decision Date: 22 December 1892
• Citation: 94 Mich. 262,53 N.W. 1103
• Court: Michigan Supreme Court
• Parties: WESTERN PUB. HOUSE v. SCHOOL DIST. NO. 1 OF TOWNSHIP OF LOCKE.

53 N.W. 1103

94 Mich. 262

WESTERN PUB. HOUSE v. SCHOOL DIST. NO. 1 OF TOWNSHIP OF LOCKE.

Supreme Court of Michigan

December 22, 1892

Error to circuit court, Ingham county; ROLLIN H. PERSON, Judge.

Suit by the Western Publishing House against School District No. 1 of the Township of Locke to recover on an order given by a director. Judgment for defendant. Plaintiff brings error. Affirmed.

Franklin S. Porter, for appellant.

Luke S. Montague, for appellee.

DURAND J.

On or about April 24, 1888, George R. Avery, who was the assessor of the defendant school district, had some talk with plaintiff's agent about the purchase of Yaggy's Anatomical Study, which is an atlas containing 40 or 50 pages of plates and printed matter prepared for teaching anatomy and physiology, with the special purpose of showing the effect of alcohol and nicotine upon the human system. Thereupon the plaintiff's agent applied to Oscar F. Perry, who was the director, to sell the study to the district. A contract for the sale to the district was then made, and signed by Oscar F. Perry, upon which the plaintiff's agent took the contract or order to George R Avery, the assessor, who also signed it. He then took it to George Hunt, the moderator of the district, for the purpose of obtaining his signature, but he refused to sign it. It is admitted that neither previous to nor at the time of signing the contract were the district board, or any two of them together, nor did they act together as such in reference to the contract, but that they acted separately in signing it. After it was signed the plaintiff, in pursuance of it, sent the study referred to to Mr. Perry, at Perry, Shiawassee county, with an order to be filled out or signed, providing for the payment of $35. The order reads as follows "Locke, Michigan, April 24, 1888. Assessor of School District No. 1, Township of Locke, County of Ingham: Pay to Western Publishing House, or bearer, on the first day of January, 1889, at Exchange Bank in Williamston, Michigan, the sum of $35.00, out of any money in your hands belonging to said district in incidental funds, for one copy of Yaggy's Anatomical Study, with interest at 7% per annum. By order of the board." When the study and the order were received, Mr. Perry signed it as director, and sent it by his daughter to Mr. Hunt, the moderator, who also signed it, and returned it to Mr. Perry, who forwarded it to the plaintiff, and took the study to his own house. Mr. Perry, the director, and Mr. Hunt, the moderator, were not together when the last order was signed, and the school board never met together as a board to act upon the question of the purchase of the study. At the annual meeting of the school district in September, 1888, Mr. Perry took the study to the meeting for the voters to examine, and he made a report of what had been done in reference to its purchase. The district refused to make the purchase of the study, or to recognize what had already been done in that direction, and the district has ever since that time refused to adopt the report of its officers or to accept the study. The study has never been used in the school, and has been in the possession of Mr. Perry, in his house, ever since it was received, and there has been no vote of the district adopting it as a text-book. After the annual school meeting in September, 1888, Mr. Perry wrote the plaintiff that the district refused to accept the study, and offered to pay express...