School Town of Rochester v. Shaw

• Decision Date: 12 February 1885
• Docket Number: 11,743
• Parties: The School Town of Rochester v. Shaw
• Court: Indiana Supreme Court

100 Ind. 268

The School Town of Rochester v. Shaw

No. 11,743

Supreme Court of Indiana

February 12, 1885

From the Marshall Circuit Court.

M. L Essick, G. W. Holman and J. D. McLaren, for appellant.

M. A O. Packard, O. M. Packard, B. D. Crawford and E. Myers, for appellee.

OPINION

Franklin C.

Appellee sued appellant upon a contract to teach school and for services rendered in teaching school. The complaint consisted of two paragraphs, one on the contract and one on account. A demurrer to each was overruled. The defendant answered by a denial and a special defence. There was a trial before a jury; verdict returned for the plaintiff for $ 104.25. A motion for a new trial was overruled, and judgment was rendered upon the verdict.

The errors assigned are the overruling of the demurrer to each paragraph of the complaint, and the overruling of the motion for a new trial.

The complaint substantially alleges that the plaintiff had the necessary license to teach school; that she was employed by the defendant to teach school; that she commenced so teaching under said employment; that she fully discharged all the duties and conditions on her part in accordance with the terms of said agreement; that before the expiration of the term of her said contract, the defendant discharged her, without any cause on her part.

The first objection to this complaint is that it does not show that the plaintiff was employed by the trustees of the school town. The complaint alleges that she was employed by the defendant, the school town. As the corporation can only act by and through the trustees as its officers and agents, it is sufficient to charge the employment by the corporation, and prove it to have been made by and through its regularly constituted authorities.

It is also objected that the complaint does not show that the town was incorporated, or that there was a board of trustees in said town. There is nothing in either of these objections.

It is further objected that as the second paragraph of the complaint is only on an account, such liability can not be created against the corporation, without a special contract with the trustees, and that the demurrer ought to have been sustained to that paragraph. There might have been a special employment by the trustees without fixing the terms of the contract, though such would be very unusual and unbusiness-like, or valuable services may have been rendered and received under a contract without complying with its terms. And in such cases a recovery may be had on an account. We think the complaint sufficient, and there is no error in overruling the demurrer to it, or either paragraph thereof.

In the motion for a new trial twenty-nine reasons are stated. Counsel have at considerable length presented and discussed nearly all of these reasons, but we do not think it advisable or profitable in this case to follow counsel in their discussions; the greater part of the reasons stated are in relation to the admission and rejection of evidence, and the giving of instructions to the jury.

The twenty-fourth and twenty-fifth reasons complain of error in the court, and misconduct of the plaintiff's counsel in the closing argument to the jury by making certain declarations and representations. According to the bill of exceptions in the record, the following is the matter complained of: "Be it remembered that after the evidence in this cause had been closed, that upon the argument of said cause to the jury, * * * counsel for the plaintiff, in the closing argument to the jury, used the following language (which was not within the issues, was wholly foreign and irrelevant, and which was intended to prejudice the minds of the jury against the cause of the defendant, and which language was wholly unbecoming), to wit: 'The discharge of the plaintiff from the Rochester school had a political significance and oppression. The trustees of that school must have a victim upon which to visit the sins of the school, and they sought out and made her the victim. Arthur M. Ward was kept in the school for the purpose of tormenting this woman; he was a man not fit to be kept there; he was a mean villain, and the board was guilty of miserable deception. Gentlemen of the jury, stand by your own citizen.' And the counsel for the defendant called the counsel, the said * * *, to order, and requested the court...