Eaker v. Common School Dist. No. 73 of Butler County

• Decision Date: 19 August 1933
• Docket Number: No. 5258.,5258.
• Citation: 62 S.W.2d 778
• Parties: EAKER v. COMMON SCHOOL DIST. NO. 73 OF BUTLER COUNTY.
• Court: Missouri Court of Appeals

62 S.W.2d 778

EAKER v. COMMON SCHOOL DIST. NO. 73 OF BUTLER COUNTY.

No. 5258.

Springfield Court of Appeals. Missouri.

August 19, 1933.

Appeal from Circuit Court, Butler County; Robert I. Cope, Judge.

"Not to be published in State Reports."

Action by Norma Eaker against Common School District No. 73 of Butler County. Judgment for defendant, and plaintiff appeals.

Reversed and remanded.

Bloodworth & Bloodworth, of Poplar Bluff, for appellant.

M. W. Henson and Lawrence E. Tedrick, both of Poplar Bluff, for respondent.

SMITH, Judge.

This action was begun in the circuit court of Butler county, and is for damages for an alleged breach of contract, the plaintiff alleging that the school board of district No. 73 entered into a written contract to pay her $90 per month to teach an eight months' school. The plaintiff alleged in her petition that she is and had been at all the times mentioned in the petition "a legal and qualified, licensed and acting public school teacher within and for Butler County, Missouri," and that the defendant is a public corporation, as common school district No. 73 of Butler county, Mo.

The petition continues as follows:

"Plaintiff further states that on April 13, 1932, she entered into a written contract with said School District No. 73, by its board of directors, at a special meeting duly called by its then acting president, upon due notice given to all members of said board, to teach a public school for said district for a period of eight months, beginning the first Monday in August, 1932, and that by request of the board of directors, the date for the opening of said school was changed to the 5th day of July, 1932, on which date she began teaching said school, and taught said school under said contract until on or about the 19th day of August, 1932. Plaintiff states that said contract was duly signed by herself and by the acting and de facto president and attested by the clerk of said School District No. 73, and was by the clerk duly recorded at the time upon the records of said school district, and said original contract is hereto attached, marked Exhibit `A,' and made a part of this petition, and she states that she was able, ready and willing at all times to perform her part of the contract.

"Plaintiff states that for a period of eight weeks she taught said school and performed all her duties as a public school teacher as required by the laws of Missouri, and the rules of the board of directors of said school district, until on or about the 20th day of August, 1932, on which date the then acting board of directors, wrongfully and unlawfully and in wilful violation of their said written contract with said school district, forced her to stop teaching, and placed another teacher in charge of said school, and without any cause on her part, breached the contract with her, to her damage in the sum of $720.00.

"Wherefore, she prays judgment for the said sum of $720.00 for damages as aforesaid, and for all proper relief."

The answer, after admitting its corporate existence, denied generally the allegations of the petition.

A trial was had to a jury on October 6, 1932, and at the close of the evidence, under direction of the court, the jury returned a verdict in favor of the defendant. The plaintiff filed a motion for new trial, which was overruled, and the plaintiff appealed to this court.

The case is before us on several assignments of error, which we shall discuss in the course of this opinion.

The evidence before us shows that on and before April 5, 1932, the board of directors of this district was composed of Charles Smith, president, Henry Alread, director and clerk, and Albert Metz. On April 5, 1932, the date of the annual school meeting, the term of Charles Smith as a member of the board expired, and he and one Charles Casinger were candidates for the office of director. Both of these men were placed in nomination at the school meeting, and both were voted for, and the minutes of that meeting show that there were 28 votes cast for Charles Smith and 32 votes for Charles Casinger.

The record shows that it was contended by Smith and Alread that Charles Casinger was not qualified to serve as a director on the ground that he was not a taxpayer within the district, and there was also contention by Charles Smith that Casinger had received illegal votes and that he was not legally elected. Casinger was not sworn in on the date of his election. The evidence shows that on Friday, April 8, 1932, Henry Alread and Albert Metz met at the schoolhouse, and Alread refused to recognize Casinger as a director and refused to administer the oath to him, and that Casinger was sworn in by Albert Metz.

On April 13, 1932, Charles Smith, continuing to act as director, and Henry Alread met at the schoolhouse in a meeting with the plaintiff, and it was at this meeting that a contract with the plaintiff was made by these two men. Albert Metz was not present, although there was evidence to the effect that Charles Smith, as president of the board, had given him written notice of the meeting. Casinger was not at this meeting, and there is no evidence that he had notice of the meeting. At this meeting minutes were kept showing the employment of the plaintiff as teacher for the eight months' school, and the minutes of the meeting also showed the following:

"At a special meeting duly called and held April 13, 1932, it was found that Charles Casinger did not possess the legal qualifications for school director as required by law, and it was therefore unanimously resolved that the Board and its official organization be and remain the same as before the annual school meeting, until a successor to Chas. Smith be legally elected and qualified to succeed him.

                                    "Henry Alread, Clerk."
                

The evidence shows that Albert Metz never attended any of the meetings after the one on April 8, and that some time prior to June 22, 1932, he resigned as director of the district, and that Henry Alread and Charles Casinger could not agree upon his successor, and that the county superintendent on June 22 appointed George McBroom as a member of the board.

The record shows that in August, 1932, Charles Casinger caused an information in the nature of quo warranto to be filed in the circuit court of Butler county directed against Charles Smith, the purpose of which was to determine which of said parties was entitled to serve as director of the district. On August 17, 1932, the circuit court adjudged Charles Casinger to be the legally elected and qualified director.

After the above-mentioned contract was made with the plaintiff, she was directed by the board that employed her to begin teaching on July 5, and she and the assistant teacher started teaching on that date and taught for seven weeks.

On August 20, 1932, Charles Casinger and George McBroom obtained a temporary injunction restraining the plaintiff and her assistant, Miss Norma Finke, from further entering upon or occupying the school property, and two other teachers were employed to teach in their place. The injunction proceedings had not been finally determined at the time of the hearing in this case.

Charles Smith had served as director and president of the board for many years, and, according to his testimony, he held on as director on the theory that he should hold the office until his successor was legally elected and qualified. The evidence shows that up to the time he was ousted by the circuit court, August 17, 1932, he met with the board, continued to act as president, entered into contracts with the teachers, passed on and allowed claims against the district, issued and signed warrants on the school fund, insured the school property, and issued a warrant therefor. All these warrants were signed by him as president of the school board. These warrants were honored and paid by the county treasurer, except the warrants issued to the plaintiff and her assistant for the first month's salaries, and these were not paid because of lack of funds. These teacher's warrants were not refused payment because not signed by proper officers of the board.

The plaintiff, when she was on the stand, testified as follows:

"My name is Norma Eaker. I live in Poplar Bluff, Mo., and I am a public school teacher, duly licensed to teach. I taught school last year in School District No. 73, known as Coon Island School. I taught a full term there last year. When that term was finished last spring, about April 1st, I made application to the school board for the school this year (1932), and they agreed to employ me. Charles Smith, Henry Alread and Albert Metz, composed the board of directors at the time they agreed to employ me, about the first of April, 1932. I afterwards, on April 13, 1932, attended a meeting of the board of directors at the schoolhouse at which time they entered into a written contract with me to teach the school. There were present there that day, acting as the board of directors, Henry Alread and Charles Smith. They entered into the written contract with me, which contract I show here as Exhibit `A.' It was duly signed by myself and the board of directors. I begun teaching the school July 5, 1932, instead of the first Monday in August, as the contract provided because the board of directors ordered me to do so. I taught until the 18th day of August, 1932, and then the officers came down there and served papers on us; the school board was ordering us to quit teaching. That was on Friday and we closed the school for that day, and the next Monday, they had two teachers, Hazel Biggs and Garnett Hogg, take charge of the school. The directors have not permitted us to teach since, and they have not paid nor offered to pay for the time I taught. I have asked them to pay and they refuse. I have no employment now. I have tried since I was ordered to quit to get other employment, but have been unable to find any. I have been ready, willing and able at all...