Owen Sch. Tp. v. Hay

Decision Date16 September 1886
Citation8 N.E. 220,107 Ind. 351
PartiesOwen School Tp., etc., v. Hay.
CourtIndiana Supreme Court

OPINION TEXT STARTS HERE

Appeal from Clark circuit court.

Action to recover for services as school-teacher.

I. K. Marsh, for appellant. H. A. Burtt, for appellee.

Zollars, J.

Appellee brought this action to recover for services as a school-teacher under an employment by the trustee of the school township. She declared upon a written contract, and, as an excuse for not setting out or filing a copy of it with the complaint, alleged that it was in the possession of the township trustee. The statute requires that when any pleading is founded on a written instrument the original, or a copy thereof, must be filed with the pleading. Rev. St. 1881, § 362. Whether the reason given for not filing a copy of the contract with the complaint in this case is sufficient need not be decided. There was no demurrer to the complaint. Its sufficiency was questioned for the first time by a motion to arrest the judgment, and by an assignment in this court that it does not state facts sufficient to constitute a cause of action. For want of a copy of the contract, the complaint is defective, but that defect would have been cured by a verdict, and was cured by the finding of the court. Westfall v. Stark, 24 Ind. 377;Purdue v. Stevenson, 54 Ind. 161;Eigenmann v. Backof, 56 Ind. 594;Scott v. Zartman, 61 Ind. 328;Galvin v. Woollen, 66 Ind. 464;Lassiter v. Jackman, 88 Ind. 118;Parker v. Clayton, 72 Ind. 307;Pennsylvania Co. v. Rusie, 95 Ind. 236.

Section 4449, Rev. St. 1881, provides that school-teachers shall, at the expiration of the terms of school, make a report to the school trustee, verified by affidavit, showing the length of the school term in days; the number of pupils admitted during the term, distinguishing between males and females, and between the ages of six and twenty-one years; the average attendance; books used and branches taught, and the number of pupils engaged in the study of each branch; and that until such report shall have been made the trustees shall not pay more than 75 per centum of the teacher's wages for their services.

It is contended by appellant that the complaint is fatally defective, because it contains no averment that such report was made by appellee. There is at least one sufficient answer to this, and that is that, conceding that such an averment is necessary in order to recover the full amount of the agreed wages, it is clear that the lack of it does not render the complaint bad as a whole. In any event, it is good for 75 per centum of the agreed wages, and is thus sufficient to withstand the assault made upon it, which is upon the theory that it states no cause of action at all. We think, too, that, as against the motion to arrest the judgment, and the assignment in this court, the complaint is made sufficient for the whole amount of the agreed wages by the general averment that appellee “performed all and singular her duties according to said contract,” etc. Stockwell v. State, 101 Ind. 1. There was no error, therefore, in overruling the motion to arrest the judgment. Neither can the assignment here that the complaint does not state sufficient facts be sustained.

The judgment, however, must be reversed because the special finding of facts and the judgment thereon are not sustained by sufficient evidence. As we have seen, the statute provides that the teacher shall, at the expiration of the term of the school, make a report to the trustee, and that until such report shall have been made the trustee shall not pay to the teacher more than 75 per centum of the agreed wages. When persons contract with township trustees to teach schools they must be held to contract with reference to the above statute. Indeed, that statute enters as a silent factor into, and becomes a part of, the contract. Bryson v. McCreary, 102 Ind. 1, 8; S. C. 1 N. E. Rep. 55; The Falmouth, etc., Turnpike Co. v. Shanhan, 107 Ind. 47, 49; S. C. 5 N. E. Rep. 408; Edwards v. Johnson, 105 Ind. 596; S. C. 5 N. E. Rep. 716; Lang v. Straus, 7 N. E. Rep. 763, (present term;) Foulks v. Falls, 91 Ind. 315.

Appellee's agreement, therefore, under the law, must be interpreted to be not only to teach the school, but also to make the report at the end of the term, and that, until the report...

To continue reading

Request your trial
34 cases
  • Oölitic Stone Co. v. Ridge
    • United States
    • Indiana Supreme Court
    • 9 Enero 1908
    ...a demurrer, or assignment of error that the same does not state facts sufficient to constitute a cause of action. Owen Township v. Hay, 107 Ind. 351, 8 N. E. 220;Culbertson v. Munson, 104 Ind. 451, 4 N. E. 57;Howe v. Dibble, 45 Ind. 120;Bennett v. Preston, 17 Ind. 291.” The theory of a plea......
  • Armstrong v. Dunn
    • United States
    • Indiana Supreme Court
    • 11 Octubre 1895
    ... ... the Lawrence Circuit Court ...           The ... judgment is affirmed ...          J. E ... Boruff, N. Crooke and M. Owen, for appellants ...          Dunn ... & Alexander and G. O. Isominger, for appellees ...           ... OPINION ... ...
  • Xenia Real-Estate Co. v. Macy
    • United States
    • Indiana Supreme Court
    • 12 Mayo 1897
    ...for want of facts. Culbertson v. Munson, 104 Ind. 451, 4 N. E. 57; Railroad Co. v. Van Slike, 107 Ind. 480, 8 N. E. 269;School Tp. v. Hay, 107 Ind. 351, 8 N. E. 220;Locke v. Catlett, 96 Ind. 291; Loeb v. Tinkler, supra. We think the complaint not only states facts sufficient to entitle appe......
  • Oolitic Stone Company v. Ridge
    • United States
    • Indiana Supreme Court
    • 9 Enero 1908
    ... ... demurrer or assignment of error that the same does not state ... facts sufficient to constitute a cause of action. Owen ... School Tp. v. Hay [1886], 107 Ind. 351, 8 N.E ... 220; Culbertson v. Munson [1886], 104 Ind ... 451, 4 N.E. 57; Howe v. Dibble [1873], 45 ... ...
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT