Tyler v. Trustees of Tualtin Academy & Pacific Univ.

• Decision Date: 19 February 1887
• Citation: 13 P. 329,14 Or. 485
• Parties: TYLER v. TRUSTEES OF THE TUALTIN ACADEMY & PACIFIC UNIVERSITY and another.
• Court: Oregon Supreme Court

13 P. 329

14 Or. 485

TYLER v. TRUSTEES OF THE TUALTIN ACADEMY & PACIFIC UNIVERSITY and another.

Supreme Court of Oregon

February 19, 1887

Appeal from circuit court, Washington county.

S.B Huston and A.S. Bennett, for appellant.

Thomas H. Tongue, for respondents.

THAYER J.

The appellant commenced an action in the said circuit court against the respondents, to recover the sum of $600; three hundred thereof against the trustees of the academy and university, and the other three hundred against said Ellis. He alleged in his complaint in said action that the former was a body corporate under the laws of the state, doing business as such at Forest Grove and elsewhere in Oregon; that, during the college year of said corporation from September 3, 1884, to June 3, 1885, at the instance and request of the respondents, and for the use and benefit of said corporation, he performed services as instructor in military science and tactics in the Pacific University &amp Tualtin Academy, and that said services were worth $700; that said sum became due and payable on and before June 3, 1885 but had not been paid, or any part of it, excepting the sum of $100, paid thereon about August, 1885; that the respondent Ellis, about August 30, 1884, for a valuable consideration, guarantied the payment of $400 of the said indebtedness; that he agreed with the appellant that if the appellant would render said services he would guaranty him said $400 thereof, and would assist in obtaining $300; and that the services were performed in consideration of the request of the said corporation, and of the guaranty of the said Ellis. The respondents interposed an answer in which they denied all the material allegations of the complaint, except the incorporation of the academy and university. The respondents also set out special facts in the answer, which were denied in a reply filed by the appellant, and which facts were termed by the parties "new matter;" but they only constituted a traverse and were redundant. In this shape the case came on for trial before said circuit court, and a jury duly impaneled to try the same.

It appears from the bill of exceptions that the appellant called A. Hinman as a witness, who testified, in substance, that he was the president of the board of trustees of the institution known as the Tualtin Academy & Pacific University; that he had been a member of such board since its organization, about 25 years; that it was incorporated under an act of the territorial legislature of Oregon. The witness then named the other trustees, consisting of some 10 in all who resided in different parts of the state, except one who resided in Washington Territory. The president and one other of the trustees resided at said Forest Grove. Stated that there was a finance committee, consisting of the respondent Ellis, Rev. Horace Lyman, who is one of the trustees, and himself; that the school usually had a president, who was ex officio a member of the board of trustees, but that during the time mentioned in the complaint it had none, except that said Ellis acted as vice-president of the faculty during that time, but did not act as a member of the board of trustees; that the board of trustees were not authorized or empowered to employ any teacher for the school, unless the board by resolution authorized some person or committee to do so; the resolution would be in writing, and recorded in the minutes of the board; that all proceedings of the board were reduced to writing, and recorded in the minutes; that the board had sometimes in this way authorized persons and committees to employ teachers, and that they might at some time have authorized the president of the school or faculty to employ a teacher, though the witness could not remember that it had done so in either case; that the finance committee had charge of advertising; a sum was set apart by the board for that purpose; that the board met annually at the close of the school year in June; that catalogues were prepared and issued by the faculty, by authority of the board; that they were usually issued about August of each year; that they were not seen, before being issued, by the board; that the board took no action upon the catalogues except to pay the bills therefor, as they could not come before the board as a board until the June following their publication. The catalogues were then given in evidence. They bore date, respectively, 1884, 1885; were similar in their style; contained the names of the members of the board of trustees, including that of the respondent Ellis as a member ex officio, the officers of the corporation, the names of the members of the finance committee, which also included that of said respondent, the members of the faculty, commencing with that of said respondent Ellis as vice-president, and including the name of the appellant as teacher of military science and tactics. They also contained the usual matter published in catalogues of literary and scientific institutions. In the body of each of the catalogues was contained the following: "Military instructions twice a week. The young gentlemen, under a good instructor, have opportunity to drill in both infantry and artillery tactics as adopted by the war department. This is the only military school in the entire northwest. It has two objects: First, to promote health and grace of movement; and, second, to prepare young men for the emergency of war." The witness was then shown a printed circular, and testified that it was prepared by the respondent Ellis, and presented to him, and that he approved it; that it was published about September, 1884, and the finance committee paid for its publication out of the funds allowed them and set apart for their use in advertising by the board of trustees; that it never came before the board for action by them. It contained upon its title-page, as a heading, the words: "Forward;" "Pacific University, Forest Grove, Oregon;" "Announcement for 1884;" "New Features;" "Ladies' Hall and Ladies' Department in Connection Therewith;" "Music and Art Instructions Given in All Branches;" "Military School,--the only one in the Pacific Northwest;" and also other matters not material to the case. In the body of the circular was contained the same notice, as to military instructions, as that contained in the catalogues. The appellant's counsel then offered the said circular in evidence. The respondents' counsel objected to its admission, upon the grounds that it was immaterial and irrelevant, and did not tend to prove any employment by respondents. The court sustained the objection, and the appellant's counsel saved an exception to the ruling. The witness further stated that, at the time the circular was issued, he knew, and the board knew, that the appellant had acted as military instructor to the students the previous year; that he had made no charges for such services, but that the board had given the tuition of his daughter for that year, and passed a vote of thanks to him; that the board did not prescribe military instructions to students, nor make or receive any charge for the same, and always declined to become responsible for any expense attending it; that the board...