122 OF SPOKANE COUNTY et al, Kimball v. School Dist. No. 122 of Spokane County

• Decision Date: 13 December 1900
• Citation: 63 P. 213,23 Wash. 520
• Court: Washington Supreme Court
• Parties: KIMBALL v. SCHOOL DIST. NO. 122 OF SPOKANE COUNTY et al.

63 P. 213

23 Wash. 520

KIMBALL v. SCHOOL DIST. NO. 122 OF SPOKANE COUNTY et al.

Supreme Court of Washington

December 13, 1900

Appeal from superior court, Spokane county; William E. Richardson Judge.

Action by Maud Kimball against school district No. 122 of Spokane county and others. From a judgment for plaintiff, defendants appeal. Reversed.

Danson & Huneke, for appellants.

S. G Allen and Jas. Dawson, for respondent.

WHITE J.

The plaintiff brings this action against school district No. 122 of Spokane county to recover on a contract to teach the public school of said district. She alleges that on the 6th of May, 1895, she entered into a contract with the defendants for that purpose, substantially as follows: 'It is hereby agreed by and between the directors of school district No 122, county of Spokane, state of Washington and Maud Kimball, the holder of a teacher's certificate, now in force in said county, that said teacher is to teach and govern and conduct the public school of said district,' etc., 'for a term of nine months, commencing on the 16th day of September, 1895, for the sum of sixty dollars per month, to be paid at the end of each school month,' etc., 'provided that if said teacher shall be legally dismissed from school, or shall have her certificate lawfully annulled by expiration or otherwise, then said teacher shall not be entitled to compensation from and after such dismissal or annulment,' etc. She further alleges that on the 16th day of September, 1895, she was ready, willing, and able to perform the conditions of said contract on her part to be performed, and was so ready, willing, and able to perform the same during said term of nine months commencing on said 16th day of September, 1895; that on said 16th day of September, 1895, and at other days and dates thereafter, during said term, plaintiff offered to perform the same, but the defendant wrongfully and without cause wholly failed and refused to permit her to teach said school, to her damage in the sum of $540. The answer of the defendants amounts to a general denial of the portion of the complaint above set out, and also denies the damages. It is further set out, as a separate defense, that the plaintiff did not hold a certificate from the county superintendent of the county, or from any other source, licensing her to teach school for the school year commencing September 16, 1895; that the certificate which she had held for the preceding year prior to the 16th of September, 1895, had lapsed and expired, and on said date was of no force and effect; that said plaintiff had taken an examination prior to said 16th day of September, 1895, but had failed to pass said examination, and failed to obtain from said county superintendent a certificate, said county superintendent refusing to issue her a certificate for the reason that he had found her incompetent by reason of her having failed to successfully pass an examination; that the board of directors refused to allow her to teach, for the reason that she did not have the certificate provided for in said agreement, and for the further reason that she was incompetent. This affirmative defense was denied by the plaintiff.

The proof establishes the making of the contract as alleged. It further appears from the evidence that when the contract was entered into the plaintiff was the holder of a third-grade county certificate, entitling her to teach in Spokane county for one year from the 13th day of August, 1894. It further appeared that in August, 1895, the plaintiff was a resident of Spokane county, and that she appeared before the board of examiners of Spokane county, and took an examination for a teacher's certificate, but she failed to pass, and was refused a certificate. She made no complaint at the time of the examination that she was unwell and unable to take the examination. The court admitted evidence in rebuttal tending to show that the plaintiff was unwell and unable to take the plaintiff was unwell and unable to take the examination. After her failure to take the examination, the county superintendent of schools for Spokane county granted her a temporary certificate, as follows: 'Temporary Certificate. Common Schools of the State of Washington. This is to certify that Miss Maud Kimball, having filed in my office evidence of being a person of good moral character and of ability to teach and govern, is hereby granted this temporary certificate, which entitles her to teach in the common schools of Spokane county, state of Washington, until the next regular examination of teachers of said county. This certificate is granted upon the following evidence of ability to teach, viz.: Third grade certificate granted August 18, 1895 [1894]; nine months' experience, district No. 122. Valid until Nov. 15, 1895. Dated at Spokane, this 26th day of August, 1895. Z. Stewart, Superintendent County Schools, Spokane County, Washington.' The evidence further tends to show that on September 16, 1895, the plaintiff presented herself with this certificate to the board of directors of the defendant district, at the school house of the district, to carry out her contract; but the directors refused to allow her to teach, and substituted another in her place. The evidence tends to show that the directors knew that she had failed to pass an examination before the board of examiners. No evidence was offered to prove that at any time after August, 1895, the plaintiff had a teacher's certificate other than the temporary certificate above set forth. The jury found a verdict in favor of the plaintiff for the full amount claimed. A motion was made to set aside the verdict and for a new trial, on the grounds: (1) Insufficiency of the evidence to justify the verdict; (2) that the verdict is against the law; (3) error in law occurring at the trial and excepted to at the time. This motion was overruled, and judgment was entered upon the verdict. Proper exceptions were taken to the rulings of the court and the entry of the judgment.

At the close of the plaintiff's testimony, the defendants moved the court to grant a nonsuit, and to withdraw the case from the jury, and render judgment for the defendants, stating, as a reason, that the plaintiff had wholly failed to prove a sufficient cause for the jury, and the further reason that the testimony of the plaintiff shows that she was not qualified to teach at the time of the alleged breach of the contract. Proper exceptions were taken to the refusal of the court to grant said motions.

The law in force at the time this contract was entered into, and at the time the plaintiff offered to perform its conditions, was as follows:

'No person shall be accounted as a qualified teacher, within the meaning of the school law, who has not first appeared before the board of examiners of the county in which he proposes to teach and received a certificate setting forth his qualifications; or has not a state certificate or a life diploma from the state board of education, or a temporary certificate granted by the county superintendent.' 1 Hill's Code, § 802.

'Each county superintendent shall have the power, and it shall be his duty, * * * to appoint,

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