Brookfield v. Drury College

• Decision Date: 06 December 1909
• Citation: 123 S.W. 86
• Parties: BROOKFIELD v. DRURY COLLEGE.
• Court: Missouri Court of Appeals

123 S.W. 86

BROOKFIELD v. DRURY COLLEGE.

Springfield Court of Appeals. Missouri.

December 6, 1909.

1. COLLEGES AND UNIVERSITIES (§ 8) — TEACHERS—CONTRACTS OF HIRING.

Factional differences having arisen in the college in which plaintiff had taught for a year, to bring about harmony and protect the college, the faculty and officers met at a meeting of the board of trustees in June, 1907, when resolutions by the board of trustees were read, which deprecated any discordant spirit, and stated that, "while we cannot control individual action, we protest against any further disintegration of the present teaching force," and urged upon the officers and faculty loyalty to the college and co-operation in making the next school year one of advancement. Held, that the resolution did not contain any contract for the employment of teachers for the next school year, and, even if it could be considered as a contract of employment, when accepted by plaintiff, at most it only recognized that she was to continue in her position for an indefinite period.

2. MASTER AND SERVANT (§ 20)—DISCHARGE— CONTRACTS OF HIRING—TERM.

A hiring for an indefinite term at so much per month or year, being a hiring at will, may be terminated in good faith by either party at any time without incurring liability.

3. COLLEGES AND UNIVERSITIES (§ 8)—HIRING TEACHERS—"YEAR."

The word "year," when used in employing teachers, means a college or school year, and not a calendar year.

4. COLLEGES AND UNIVERSITIES (§ 8)—HIRING TEACHERS—"COMMENCEMENT."

As applied to the employment of teachers, the word "commencement," when used in connection with colleges, according to American usage, does not mean the commencement of the college year, but the last day of the college year, when degrees are conferred upon the graduates.

5. EVIDENCE (§ 73) — PRESUMPTIONS—USUAL COURSE OF BUSINESS.

In view of the presumption that the usual course of business is pursued in a business transaction, where the board of trustees of a college were required by its charter at each annual meeting to fix the date of commencement for the following year, it will be presumed, in absence of contrary evidence, that the date of the commencement as held was fixed at the meeting of the board of trustees the preceding year.

6. EVIDENCE (§ 222)—ADMISSIONS.

Admissions of a party contrary to his contentions at trial, or negativing the allegations of his pleadings, are competent evidence against him.

7. EVIDENCE (§ 265)—ADMISSIONS—CONCLUSIONS.

To constitute the statement of a party a binding admission against him, it is not necessary that he have personal knowledge of the fact admitted, if he believes it to be true upon evidence sufficient to convince him of its truth, so that a party's conclusions as to what the contract was, upon which she based her action, were admissible against her, though it was incompetent for her to give such conclusions in evidence.

8. EVIDENCE (§ 472)—ADMISSIONS—CONCLUSIONS OF WITNESS—CONTRACT.

In an action for breach of contract, plaintiff could only testify to the facts which she claimed constituted the contract, and could not give her conclusions as to what the contract was so as to bind defendant; that being for the court.

9. FRAUDS, STATUTE OF (§ 106)—CONTRACTS— SUFFICIENCY OF MEMORANDUM — CONTRACT OF HIRING.

The memorandum of the agreement required by the statute of frauds (Rev. St. 1899, § 3418 [Ann. St. 1906, p. 1951]) must contain the entire contract, and alleged memoranda which did not contain any of the terms of the contract of hiring, its commencement or termination, when payments were to be made, or the nature of the service to be performed, was insufficient, and such facts cannot be supplied by parol to make out the contract alleged.

10. FRAUDS, STATUTE OF (§§ 52, 53)—TIME OF PERFORMANCE.

Under Rev. St. 1899, § 3418 (Ann. St. 1906, p. 1951), providing that no action shall be brought to charge one upon an agreement not to be performed within one year from the making thereof, unless such agreement, etc., is in writing, the year commences from the date of the agreement, and the fact that the contract may be performed within a year from the time performance was to commence does not take it out of the statute, so that a contract, employing a teacher, made in June, 1907, which was to continue until June, 1908, covering one year and five days from its date, was within the statute, though the services were performed within the school year from September, 1907, to the end of the school year in the following June.

Appeal from Circuit Court, Greene County; James T. Neville, Judge.

Action by Mary P. Brookfield against Drury College. From a judgment for plaintiff, defendant appeals. Reversed.

V. O. Coltrane and E. D. Merritt, for appellant. Sebree, Farrington, Pepperdine & Wear, for respondent.

NIXON, P. J.

It becomes necessary in this case, in order to determine whether the demurrer to the evidence should have been sustained by the trial court, to consider substantially all the evidence in the case.

The plaintiff first introduced in evidence the articles of association and by-laws of Drury College. The portions thereof which appear to be material to the questions involved in this case are as follows:

"Article I. Be it known that we, the undersigned, do hereby on this 29th day of July, A. D. 1873, organize and constitute ourselves a body corporate and politic, under the provisions of article VIII of chapter 37 of Wagner's Missouri Statutes, for the purpose of promoting the higher education and Christian culture, by founding and forever maintaining a school of liberal learning and agree to be known and styled as Drury College, * * * maintaining and conducting a college of liberal learning. All of which said powers, together with all other powers now conferred, or which may be hereafter conferred upon said corporation by law, shall be vested in and exercised by a board of trustees to be appointed as hereinafter provided, and by their successors in office."

"Article III. The board of trustees of Drury College shall consist of twenty members, besides the president of the college, who shall be a member ex officio. * * * All vacancies in the board of trustees shall be filled at the annual meeting of the board. Seven members of the board of trustees shall constitute a quorum for the transaction of business. The board of trustees of Drury College shall have power to appoint a president of said college, and all other officers, instructors, agents and servants necessary for the successful conduct of its affairs; to establish the terms of their respective offices or service, to determine their duties, fix their compensation, and remove them when the interest of the college shall require it, and appoint their successors. The board of trustees shall also determine the course of study and instruction to be pursued in the college or any of its departments, and ordain the necessary by-laws and regulations for the government and direction of all officers, instructors, students and servants of the college, and for the general management of all its affairs. The annual meeting of the board of trustees of said Drury College shall be held on the Wednesday immediately preceding the Thursday in June on which occurs the annual commencement of said college in each and every year.

"Article IV. * * * Faculty. The President of the college shall also be president of the faculty of instruction for the college. The board of permanent instructors in the college shall constitute the college faculty. Under the general direction of the board of trustees, the faculty of the college shall arrange the plan of instruction in the college; prepare the requisite code of regulations for the government of the students, administer the discipline of the college, and be held responsible for the right performance of its educational work."

"By-Laws.

"Article II. Annual Meeting. The annual meeting of the college shall be held in Springfield, Missouri, on the Wednesday immediately preceding the Thursday in June on which occurs the annual commencement of said college in each and every year, for the election of trustees and officers and for the transaction of other business."

The deposition of Mary P. Brookfield, the plaintiff, was then offered in evidence. "Defendant objected to such portions of said deposition as pertained to the contract between the plaintiff and defendant for the reason that the alleged contract was not to be performed within one year, and sets up an oral contract. Defendant objected especially to the resolution set forth in said deposition as irrelevant, incompetent, and immaterial to this case, and bears no semblance to a contract of employment, because it lacks every essential to a contract of employment, because there are no parties to a contract of employment, because there are no duties to be performed, and no compensation to be paid, and no subject-matter as far as the contract of employment is concerned; and as a contract of employment it is unilateral, inasmuch as it does not bind the plaintiff, and tends in no way to prove the issues in this case, and it shows upon its face what it is; that, instead of being a contract of employment, it is an effort on the part of the board of trustees to set right some difficulties that had occurred between the president of the college on one side and the faculty on the other; that the subject of the proclamation of June 6th is an effort to set right a state of affairs that had arisen between the president and the faculty, and not a contract of employment between this plaintiff and the board of trustees." The foregoing objections of the defendant were by the court overruled and exceptions saved.

Those portions of the testimony of Mary P. Brookfield which are deemed material to a determination of the questions presented on this appeal are as follows:

"Q. 1. State your name, residence, and occupation. A. 1. My name is Mary P....