Jackson v. Indep. Sch. Dist. of Steamboat Rock

• Decision Date: 21 January 1899
• Parties: JACKSON v. INDEPENDENT SCHOOL DIST. OF STEAMBOAT ROCK.
• Court: Iowa Supreme Court

77 N.W. 860

JACKSON

v.INDEPENDENT SCHOOL DIST. OF STEAMBOAT ROCK.

Supreme Court of Iowa.

Jan. 21, 1899.

Appeal from district court, Hardin county; B. P. Birdsall, Judge.

Action to recover damages for breach of a contract of employment. From a judgment in plaintiff's favor, defendant appeals. Reversed.H. L. Huff and Geo. W. Ward, for appellant.

Albrook & Lundy, for appellee.

WATERMAN, J.

The record discloses somewhat singular proceedings in the district court. It appears that defendant filed an answer to the petition, and that plaintiff interposed to such answer both a motion and demurrer. With the record in this condition, a jury was impaneled and testimony taken. While the trial was in progress, the court interrupted proceedings, and sustained both motion and demurrer, and rendered judgment in plaintiff's favor for the full amount claimed. The case, as presented here, involves no questions save those raised by the attack on the answer.

2. Plaintiff sues for breach of a written contract under which she was employed to teach in the intermediate department of the public school in defendant district for the period of 34 weeks, beginning September 7, 1896. She alleges that she was wrongfully discharged by defendant on the 28th day of November, 1896, and that after this date she held herself ready and was willing to perform her part of the agreement, but that defendant refused to permit her so to do. Plaintiff further alleges that in the matter of her discharge she appealed from the action of defendant'sboard to the county superintendent, and that his decision was in her favor; and that from this ruling defendant appealed to the superintendent of public instruction, and this latter official affirmed the holding of the county superintendent. The answer of the defendant consists of several counts or divisions. In the first division, the contract of employment, plaintiff's discharge, and the appeals to, and the rulings of, the county superintendent and the superintendent of public instruction are admitted as charged in the petition. But it is averred that plaintiff was rightfully discharged. The other counts of the answer will be set out fully in presenting the points raised by the motion and demurrer. It is only necessary to say here that, after the motion and demurrer were filed, count 2 of the answer was withdrawn, and we shall therefore pass without further mention the part of the motion which assailed that division.

The fourth paragraph of the answer is as follows: “And for further answer to the plaintiff's said petition, and as special and full matter of defense thereto, the defendant alleges that its board of directors of the independent school district of Steamboat Rock, Iowa, believing that the plaintiff was fully competent, as she was holding a first-class teacher's certificate, and that she was more suitable and better adapted as assistant teacher in the high-school department of said schools than to the intermediate department, and at the time needing and wanting a teacher as such assistant, the said board of directors, on the 4th day of January, 1897, being the first day of the winter term of said schools, having prior thereto regularly elected the plaintiff to said position, offered and tendered to her the said position as assistant teacher in the higher department of said school, at a salary of $35 per month for the full term of five months covered by her school contract of September 5, 1896, and then and there tendered her a regular written and printed school contract therefor, namely, from the first Monday in January, 1897, ten weeks, and from the first Monday in April, 1897, ten weeks, and covering and embracing her full salary under the old contract for the full five months, at $35 per month, aggregating the sum of $175. And thus, under the offer of defendant, plaintiff could have and would have earned, for the full unexpired term of five months, as much as she could have earned under the contract on which this action is based, and thus no damages follow. That plaintiff immediately and unqualifiedly refused the said contract and employment, whereby she could have saved herself and defendant from any damage whatever by reason of her discharge from employment under her old contract, and plaintiff is now estopped from having or claiming any damage from defendant on account of not being allowed to teach in its intermediate department under her old contract for the five months unexpired time. And defendant prays judgment if plaintiff should further have and maintain her said action therefor.” Plaintiff moved to strike this from the answer, because defendant could not avoid the force and effect of its action, in wrongfully discharging plaintiff, by offering her work of a different nature and character; and, further, that, if this paragraph is intended as a distinct defense, there is no confession therein of plaintiff's cause of action, and without a confession there can be no plea in avoidance.

We will dispose of the questions thus presented before passing to the other branches of the motion and demurrer. It is apparent, from reading this division of the answer, that it is intended to set forth a distinct and affirmative defense, as provided in section 2657, Code 1873. This being true, it could not properly be stricken on motion. A demurrer lies in such a case. Bolinger v. Henderson, 23 Iowa, 165;Douglass v. Bishop, 27 Iowa, 214;Wattels v. Minchen, 93 Iowa, 517, 61 N. W. 915;Bank v. Green, 33 Iowa, 140.

It is also asked in the motion that the sixth division of the answer be stricken. This portion of the answer is in these words: “And for further answer to plaintiff's petition, and as full and complete defense thereto, defendant alleges that plaintiff, in her said contract set out in plaintiff's petition, agreed, among other things, ‘that will faithfully instruct and impartially govern the children and youth who may attend the same; that she will refrain from all profanity and improper conduct while in their presence; will institute no cruel or unusual punishment; and will faithfully perform all the duties of a teacher in the said school, according to the laws and rules legally established for the government thereof.’ ” Defendant alleges “that plaintiff was guilty of a breach of her said contract in that she did not impartially govern the children and youth attending the said school, but was guilty of partiality towards some of the children in the school in her methods of punishment; that she instituted cruel, unusual, and unjustifiable...