Frazier v. School Dist. No. 1

Decision Date10 January 1887
Citation24 Mo.App. 250
PartiesCLOID S. FRAZIER, Appellant, v. SCHOOL DISTRICT NUMBER 1, TOWNSHIP 50, RANGE 20, SALINE COUNTY, Respondent.
CourtKansas Court of Appeals

APPEAL from Saline Circuit Court, HON. JOHN P. STROTHER, Judge.

Affirmed.

Statement of case by the court.

This action was instituted in a justice's court, to recover a month's wages alleged to be due plaintiff from the defendant, a school district, under the statutes of this state. The cause was finally tried on appeal in the circuit court before the court sitting as a jury. The evidence pertinent to this appeal, showed that in August, 1884, the directors of said school district employed the plaintiff to teach in said district a school for the term of seven months commencing on the first of September following. The contract between the parties was reduced to writing, and was in the usual form prescribed by statute for such contract, with this additional provision: " It is further agreed that when said Frazier fails to give general satisfaction as teacher that this contract is to be null and void." After the plaintiff had taken charge and taught said school for one month and a half, the board of directors and patrons becoming dissatisfied with him, the board held a meeting and determined to notify him to quit; and accordingly a majority of the board directed the clerk to notify the plaintiff thereof, and request him to quit.

This notice was accordingly handed the plaintiff by said clerk while the plaintiff was on his way to the school house. After reading it the plaintiff proceeded to the school house opened school, and about ten o'clock, A. M., dismissed school, and after locking the door, took and delivered the key to the said clerk, and accepted from the clerk a warrant for the half month, which was all that was then due him.

Before, however, going to the clerk he went to the president of the board of directors, and asked him about the matter. The president informed him of the dissatisfaction, and the action of the majority of the board, informing him that he did not concur therein. And when asked by plaintiff what he should do, the director told him to exercise his own judgment in the matter.

After so receiving his warrant, he testified that for a month or so he was out of employment, and was unable to obtain any; but his pay in his present employment was better than his wages under the contract with the school board, but it cost him more to live. How much more he did not state.

As the court gave an instruction in the nature of a demurrer to the evidence it is not deemed important to state other declarations of law given and refused. The court found the issues for the defendant, and the plaintiff has appealed.

S. B. BURKS and BOYD & SEBREE, for the appellant.

I. The appellant contracted with the directors of the district to teach the school for seven months at forty dollars per month. He was prevented by the directors from doing so, and was out of employment for one month. Now, unless he was discharged according to law, he ought to recover the contract price for this lost time. He was not discharged according to law. The directors had no legal power to discharge him. Arnold v. School District, 78 Mo. 226; Armstrong v. School District, 19 Mo.App. 462. The theory of the court by the giving and refusing instructions admits this doctrine, but avoids the effect of it by deciding that the acts of the directors did not amount to a discharge, and that, therefore, the appellant should not have quit the school.

II. This conclusion of the court, we submit, was erroneous. The directors had the control and custody of the school house. They had the right to the possession thereof as against all persons whomsoever, the appellant as well as all others. Rev. Stat., sect. 7044. They did, by the order of record and by the notice to appellant, declare to him that he must quit the school house and deliver possession thereof to the district clerk by delivering to him the key. The appellant simply complied with this request. What else could he have done? Was he to wait for a forcible expulsion, or until the house was barricaded against him? If so, why? If they had the power to keep him out of the house, that power was capable of exercise as well by an order or command as by force.

III. The clause in the contract to the effect, that if appellant failed to give satisfaction the contract should be null, does not affect the case. There is no proof of dissatisfaction in the case except a mere statement of one of the directors. Before the appellant was subject to discharge upon this ground, if at all, he was entitled to have the fact established in a legal way that there was dissatisfaction. The directors had no power to decide this question. We think the appellant was entitled to a judgment, and we respectfully ask that the judgment be reversed.

RICH & RECTOR and THOS. SHACKELFORD, for the respondent.

I. This case is clearly distinguished from Arnold v. School District (78 Mo. 226), and Armstrong v. School District (19 Mo.App. 462). The evidence in the present case tended to show that plaintiff had voluntarily signed a contract with a condition not specified in the authorized forms of contract. This condition was, that " when said Frazier fails to give general satisfaction as teacher that this contract is to be null and void." The evidence shows that plaintiff knew that most all the patrons were dissatisfied with him as teacher, and was by the directors requested to quit. The written notice offered in evidence informed him that " under the contract" his services were no longer needed. All parties acquiesced in the terms of the condition in the contract, and when plaintiff was notified that under the terms of the contract he must quit, he made no objection, but voluntarily dismissed the school, delivered up the key, received his warrant for the time actually taught, made no pretense that he claimed that he was illegally discharged, and never once offered to perform his contract for the unexpired time. The directors had a right to assume a voluntary abandonment of the contract and a rescission thereof. See Lynch v. Rosslein, 7 Mo.App. 597.

II. The finding of the facts by the trial court, under the evidence, is conclusively in support of all the instructions given by the court for defendant. All the instructions are sustained by the evidence. It is unnecessary to cite many authorities to show that the appellate court will not, except in the strongest kind of case, review the findings of fact by the court or jury in the trial court. See Nearns v. Harbest, 25 Mo. 352; Chouteau v. The Jupiter Iron Works, 83 Mo. 73. The circuit court, having found the facts, that plaintiff voluntarily quit teaching school and received his pay for the time taught; that plaintiff knowing that he did not give satisfaction, and having received notice from the directors to quit, on the ground that he did not give satisfaction, agreed with the directors to abandon the contract; that plaintiff voluntarily quit and did not hold himself in readiness to perform, or offer to go on and perform his contract, but permitted, by his conduct, the directors to proceed upon the presumption that he had abandoned his contract, he is clearly estopped from suing for the unexpired time. Taylor v. Saugrain, 1 Mo.App. 312; Austin v. Loring, 63 Mo. 19.

III. The...

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