Heath v. Goslin

• Decision Date: 31 October 1883
• Citation: 80 Mo. 310
• Parties: HEATH v. GOSLIN et al., Appellants.
• Court: Missouri Supreme Court

80 Mo. 310

HEATH

v.GOSLIN et al., Appellants.

Supreme Court of Missouri.

October Term, 1883.

Appeal from Holt Circuit Court.--HON. H. S. KELLEY, Judge.

AFFIRMED.

The following were the declarations of law given at plaintiff's instance and referred to in the opinion:

1. If it appear to the court sitting as a jury, from the evidence, that on or about the 20th day of June, 1878, Asher Goslin, on behalf of himself as president of the Northwest Missouri Normal School and his co-defendants, T. C. Dungan, Wm. Hawkins, Wm. Kaucher, and Wm. A. Gardner, contracted with and employed Alice Heath, plaintiff, to teach a department in said Normal school during the next school year beginning on the first Monday in September, 1878, and to end June 12th, 1879, and agreed to pay her $800.00 for her services, and she, the plaintiff, did then and there accept said offer and terms of said contract and did in accordance with the terms of said contract, enter upon the discharge of the duties as teacher of said department, in said school, on said day of September, 1878, and teach until the close of said school year, June 12th, 1879, and that at a meeting of defendants, as such Normal board, November 30, 1878, said board ordered Wm. Hawkins, secretary, to draw up a contract with Miss Alice Heath for her services as assistant teacher for said school year at $800.00 for the year, and that they, the defendants, ordered and directed Wm. Hawkins at divers times to issue warrants for her services, and such warrants were issued to the number of four, for $200.00 each, and that defendant, T. C. Dungan, as treasurer for defendants, paid the sum of $501.15, to her, all of such acts will be considered as affirming and ratifying said contract made by Asher Goslin, and the finding should be for the plaintiff in the sum of ______ dollars, with interest from June 12, 1879, to the close of said school year, as the contract thereby becomes the contract of all and each defendant.

2. It is conceded that defendants were not a corporation, or a partnership, or a company, but that they were a committee or association organized for educational purposes, to carry on the Northwest Missouri Normal school and to devise ways and means to carry on said school and in that capacity to hire teachers and to provide for the payment thereof, and that they have no resources for raising money or means whereby to defray the expenses of said school; and if the court sitting as a jury, finds from the evidence that the defendants as such committee or association, contracted with or agreed to pay plaintiff the sum of $800.00 for her services as teacher for the school year, beginning first Monday in September, 1878, and that she in good faith entered upon and performed said contract on her part, then the court should find the defendants liable for such part of said sum of $800.00 as still remains unpaid and their liability is as individuals, not as a company, corporation, or board.

T. C. Dungan pro se, and T. H. Parrish for appellants.

The matter contained in defendants' answer, if true, was a complete defense, and plaintiff having failed to reply, it stood admitted, and the finding of the court should have been for defendants. R. S. 1879, §§ 3525, 3526, 3545; Phillips v. Jones, 20 Mo. 65; Emory v. Phillips, 22 Mo. 499, 501; Tomlinson v. Lynch 32 Mo. 160; Marshall v. Ins. Co., 43 Mo. 586; Bartholow v. Campbell, 56 Mo. 117; Kansas City, etc., v. Sauer, 65 Mo. 278. This case does not fall within the rule announced in the cases of Smith v. City, etc., 45 Mo. 449; Henslee v. Canafax, 49 Mo. 295; Howell v. Reynolds Co., 51 Mo. 154; for the defendants raised their objections at every stage of the proceeding. The petition failed to state a cause of action. The authority of defendants to make the contract should have appeared from the petition. Field v. Railroad Co., 76 Mo. 614. The declarations of law for plaintiff were wrong. Childress v. Cutter, 16 Mo. 24; Hail v. Palmer, 5 Mo. 403; Morrissey v. Wiggins Ferry Co., 47 Mo. 521; Starkie's Ev., (8 Am. Ed.) § 298; 2 Greenleaf Ev., §§ 483, 484; Brown v. Pearson, 8 Mo. 159; Kuhn v. Weil, 73 Mo. 213; Story on Part., p. 128. If the plaintiff agreed to teach, knowing at the time from what source her pay was to come, and expected or agreed to look to that source, and did not expect to hold defendants individually, she cannot recover. Tutt v. Hobbs, 17 Mo. 486; Story on Part., § 130; Collyer on Part., 938; Taylor v. Zipp, 14 Mo. 482; Bolls v. Perry, 57 Mo. 449; Spurlock v. Sproule, 72 Mo. 503; Acton v. Dooley, 74 Mo. 63; Helmes v. Stewart, 26 Mo. 529; Munson v. Sylvester, 42 Ind. 106; Ewell's Evans Agency, side page 300.

James Limbird for respondent.

The finding and judgment of the court below is sustained by the pleading and evidence. The citizens of the town of Oregon could not be sued. There was no tangible principal behind defendants who could be reached and held liable, and, therefore, defendants were liable. 1 Parsons on Contracts, (6 Ed.) p. 124; Ib., p. 146; Story on Agency, (8 Ed.) §§ 275, 279, 282, 283, et seq; Hovey v. Pitcher, 13 Mo. 191; Thompson v. McCullough, 31 Mo. 224; McClellan v. Parker, 27 Mo. 162; Lapsley v. McKinstey, 38 Mo. 245; Einstein v. Holt, 52 Mo. 340; Blakely v. Benecke, 59 Mo. 193; Ferris v. Thaw, 72 Mo. 445.

PHILIP, C.

It appears from the pleadings and proofs that in 1874 the defendant, Goslin, who was connected with the public schools of the town of Oregon in Holt county, and the other defendants and citizens of said town, conceived the project of establishing, in connection with the public school system of the community, a high grade school after the fashion of a Normal school, to be known as the “Northwest Missouri Normal School.” To that end a public meeting of the citizens was called, and measures were inaugurated to accomplish the purpose. Defendant, Goslin, as principal of the public school, was to have charge of the Normal department. As a means of raising the necessary funds for its conduct, the tuition was fixed at $30. A public subscription was to be made of $30 by each subscriber, to be held and used as a guaranty fund, subject to assessment to pay any deficit consequent upon a failure to realize from patronage a fund sufficient to defray the expenses of running the Normal department, added to which the school board of the public school furnished $1,000 per year out of the public funds, and the use of the public building, fuel, etc.

The defendants were appointed a committee, known as “The Board of Regents,” to take charge of the school and conduct its affairs.

The school was opened and conducted for the years 1877, 1878, and 1879. The plaintiff was employed by defendants, as such board, for the years 1877 and 1878 as a teacher, and paid by them. For the term to begin September, 1878, ending June, 1879, Goslin, as president of the board, applied to the plaintiff to renew the engagement with her as teacher for that term. They had paid her $800 the year before. Goslin tried to get her to take less for the year in question. She declined, and thereupon he engaged her on the part of the board at the sum of $800. She rendered the service accordingly. The board paid her $400 in money for the first and second quarters, and for the third and fourth quarters they gave her orders, signed by defendant, Goslin, as president, and the defendant, Hawkins, as secretary, on the treasurer for $200 each, on which they made payments, leaving a balance of $298.85, and interest, unpaid. To recover this sum this suit is brought.

The court sitting as a jury, found for the plaintiff, and rendered judgment accordingly. The defendants have appealed.

I. The contention of the defendants chiefly, is that the contract in question was not a personal undertaking on their part, but they were acting for the public, and the plaintiff rendered the service depending upon the fund that might come from the sources indicated in the feregoing statement.

The controlling question then is, to whom did the plaintiff give the credit, and whom did the defendant understand her to be crediting? If, as a matter of fact, it was so understood by both parties as to become a part of the contract that the so-called board of regents were not to be responsible in any event to this teacher for her agreed wages, they would not be bound, although there was no responsible principal behind them. Enough is shown by the record to conclude that the plaintiff, when she performed the service, knew the origin of this school, and the source from which the board expected its pecuniary sustenance. It is also true that she testified she did not expect the defendants individually to pay her. But she further testified, to what would seem to be the plain, common sense idea all the parties must have entertained, that she was employed by the board, and “expected the board--the defendants--would provide the means with which to pay me; I had nothing to do with the matter of raising the money; I did not agree to look to any particular fund or source for funds; the board hired me and agreed to pay me; I supposed they would raise the money in some way; I did not agree to take any pay, or rely on any contingent fund or anything of the sort; they employed me and agreed to pay me, and I looked to them for pay and not to anybody else or any particular fund.”

There were other facts in evidence too, which, in our opinion, entitled the plaintiff to have the issue submitted to the jury as to whether the defendants were personally answerable. Prior to this year in question the defendants had...