Jackson School Township v. Shera

• Decision Date: 28 November 1893
• Docket Number: 1,167
• Citation: 35 N.E. 842,8 Ind.App. 330
• Parties: JACKSON SCHOOL TOWNSHIP v. SHERA
• Court: Indiana Appellate Court

35 N.E. 842

8 Ind.App. 330

JACKSON SCHOOL TOWNSHIP v. SHERA

No. 1,167

Court of Appeals of Indiana

November 28, 1893

From the Decatur Circuit Court.

Judgment reversed, with instructions to grant a new trial.

W. A Moore and F. E. Gavin, for appellant.

S. A Bonner, M. D. Tackett and B. F. Bennett, for appellee.

DAVIS C. J. GAVIN, J., did not participate in this decision.

OPINION

DAVIS, C. J.

This was an action by the appellee to recover damages for breach of contract entered into between appellee and appellant, for services as a teacher in the public schools of said township.

The material allegations in the complaint are the same as in School Town of Milford v. Zeigler, 1 Ind.App. 138, 27 N.E. 303, with the exception that in the case cited the contract was in writing, and the action was against the school town, while this is against the school township.

The learned counsel for appellant, in a cogent brief, earnestly contend that the complaint is bad because the school township can not be held to respond in damages for the breach of an executory contract of this kind, when the corporation has received no benefit whatever, and cite, in support of this proposition, Bloomington School Township, etc., v. National School Furnishing Co., 107 Ind. 43, 7 N.E. 760; Boyd v. Mill Creek School Township, 114 Ind. 210, 16 N.E. 511; Honey Creek School Township v. Barnes, 119 Ind. 213, 21 N.E. 747; Litten v. Wright, etc., 1 Ind.App. 92, 27 N.E. 329.

We heartily concur in the principles enunciated in those cases, but whatever our conclusion might be relative thereto, as applied to this case, it will suffice for the present to say that under the decisions of the Supreme Court, although the exact question here presented does not seem to have been considered, the liability of the school township for damages on account of the breach of such executory contract on the part of the trustee has been recognized. School Town of Milford v. Powner, 126 Ind. 528, 26 N.E. 484; Reubelt v. School Town of Noblesville, 106 Ind. 478, 7 N.E. 206.

It is also insisted that the contract was invalid because it was merely verbal, and should have been reduced to writing. No authority, however, has been cited which supports this proposition. The statute, so far as our attention has been called thereto, does not so provide. Sections 4444 and 5993, R. S. 1881.

In Fairplay School Township v. O'Neal, 127 Ind. 95, 26 N.E. 686, Judge ELLIOTT, in speaking for the Supreme Court, says: "It is, we may say in passing, not altogether clear that the statute does not require that all contracts shall be in writing and be recorded, but we do not deem it necessary to decide that question."

The learned judge does not cite any section of the statute or decision in support of the above dictum, and we are not prepared to say there is any statute in force that would bear such construction. The writer not only agrees with Judge ELLIOTT that "There is much reason for scrutinizing with care contracts made so far in advance of the opening of the school year as was that here sued on,...