The School Town of Milford v. Powner

• Citation: 26 N.E. 484,126 Ind. 528
• Decision Date: 15 January 1891
• Docket Number: 14,261
• Parties: The School Town of Milford v. Powner
• Court: Indiana Supreme Court

26 N.E. 484

126 Ind. 528

The School Town of Milford v. Powner

No. 14,261

Supreme Court of Indiana

January 15, 1891

From the Decatur Circuit Court.

The judgment is affirmed, with costs.

J. K Ewing, C. Ewing, J. D. Miller and F. E. Gavin, for appellant.

W. A Moore and J. A. Marshall, for appellee.

OPINION

PER CURIAM.

This opinion, in which we all concur, was prepared for the court by the late Judge Mitchell and expresses the views and judgment of the court.

The school town of Milford was sued by Eva M. Powner to recover damages for the breach of a written contract alleged to have been entered into with the plaintiff by the duly elected and qualified board of school trustees of the town, whereby the plaintiff was employed to teach the primary department of the schools for a term of thirty weeks for a stipulated compensation. The plaintiff avers, in substance, that she was duly employed by the school board as a teacher; that she was ready and willing to enter upon her engagement and fulfill her contract, but that before the opening of the schools the board of school trustees was changed by the election of two new members, and that the board as reorganized repudiated the contract with the plaintiff and employed another teacher in her place, and that the plaintiff had not been able to obtain other like employment, whereby she had sustained damages etc.

It is conceded that the complaint states facts sufficient to constitute a cause of action within the ruling in Reubelt v. School Town of Noblesville, 106 Ind. 478, 7 N.E. 206. Among other things, the school corporation answered that the persons who assumed to enter into the contract with the plaintiff on behalf of the town were not the duly elected and qualified school trustees, but were mere usurpers, and that they acted by usurpation as trustees for a period of six years prior to the making of the contract. It is averred that while so acting, with knowledge that the town board was about to elect a legal school board, and that the patrons of the school were opposed to the employment of the plaintiff, and for the purpose of forestalling the action of the new board, which was about to be elected, the old board, constituted as above, entered into the contract mentioned in the complaint, which it is alleged they did without any meeting, and while members of the board were not in session.

This answer does not confess and avoid the complaint. It is averred in the complaint that the plaintiff was duly employed by the legally elected and qualified school trustees of the corporation. The averments of the answer are to the effect that she was not legally employed by the board of school trustees. This was nothing more than a special or argumentative denial of the complaint, and having been pleaded after a general denial, under which all the facts averred in the special denial were provable, there was no reversible error in sustaining a demurrer to it. Henderson v. Henderson, 110 Ind. 316, 11 N.E. 432; Nixon v. Beard, 111 Ind. 137, 12 N.E. 131; Mason v. Mason, 102 Ind. 38, 26 N.E. 124. The evidence tends to show that two of the school trustees, who were in office at the time the contract with the plaintiff was made, were duly elected by the trustees of the town of Milford, in 1878, and one in 1880, all of whom qualified and gave bond according to law. No election was afterwards held until in 1886. The old trustees continued to hold over because no successors had been elected and qualified.

The fact that the old trustees or school board continued in office under the circumstances disclosed did not render them liable to the charge of usurpation. Having been duly elected and qualified in the beginning, and having, pursuant thereto entered upon the discharge of their official duties, they became officers de jure as well as officers de facto, and so continued until their...