Baxter v. School Dist. of Miller , 217 Mo. App. 389 ( 1924 )

^* Headnotes 1. Schools and School Districts, 35 Cyc., p. 1082; 2. Schools and School Districts, 35 Cyc., p. 1086; 3. Schools and School Districts, 35 Cyc., p. 1083. Plaintiff, a teacher, sued to recover for an alleged breach of contract. At the close of plaintiff's case the court sustained a demurrer to the evidence, and plaintiff took an involuntary nonsuit with leave. In due time plaintiff filed motion to set aside nonsuit which motion was overruled, and she appealed.

Plaintiff was employed as a teacher in the defendant district for the school year of 1921 and 1922, and her cause is founded upon the contention that she was employed for the following year beginning in September, 1922. On April 24, 1922, the board of directors in lawful session, with all members present, unanimously elected plaintiff to teach in said district for the following school year. The record of the board respecting plaintiff's election is a follows: "On motion it was voted to go into election of teacher for the 5 and 6 grades, and on ballot Miss Reitha Baxter was duly elected at a salary of $65 per month."

On May 12, 1922, plaintiff signed the usual formal contract which had been prepared by the clerk of the school district and attested by him, and left at a bank for plaintiff to sign. The board of directors subsequently repudiated plaintiff's election as teacher, employed another in her stead, and refused to permit her to teach in said school.

The defense is bottomed squarely upon the proposition that the defendant district is not bound by the alleged contract of employment. Defendant contends that the record entry, supra, and the formal contract signed by plaintiff and the district clerk do not constitute a complete contract. The president of defendant district did not sign the formal contract which was signed by plaintiff and the district clerk, and defendant is relying on this omission to escape liability. Pertinent to the question at bar section 11137, Revised Statutes 1919, provides that a contract for the employment of a teacher in the public schools, "shall be made by order of the board; shall specify the number of months the school is to be taught, and the wages per month to be paid; shall be signed by the teacher and the president of the board and attested by the clerk of the district," etc.

Every requirement of the statute was met except the president of the board did not sign the formal contract. Was the president's signature absolutely necessary in order to bind the district? We think not. Section 11138 Revised Statutes 1919, provides that the contract mentioned in section 11137 shall be construed under the general law of contracts. Section 2164, Revised Statutes 1919, provides that: "No county, city, town, village, school township, school district or other municipal corporation shall make any contract, unless the same shall be within the scope of its powers or be expressly authorized by law, nor unless such contract be made upon a consideration wholly to be performed or executed subsequent to the making of the contract; and such contract including the consideration, shall be in writing and dated when made, and shall be subscribed by the parties thereto, or their agents authorized by law and duly appointed and authorized in writing."

Section 2164 is a part of the general statutory law relating to contracts and by virtue of section 11138, supra is to be considered in determining the construction of a teacher's contract. In Platte City to use of Prior v. Paxton,141 Mo. App. 175, 124 S.W. 531, it was held that an ordinance for street improvement, written bid duly signed, and a resolution accepting the bid constituted a written contract, and was a substantial Compliance with what is now section 2164. In Blades v. Hawkins,133 Mo. App. 328, 112 S.W. 979, it was held that where a county court entered an order of record employing an accountant to audit the books of the county officers setting out therein the terms of the employment, and the person employed filed his written acceptance, that such was a sufficient compliance with what is now section 2164. School District v. Edmonston, 50 Mo. App. 68, was a proceeding by injunction to restrain a teacher from teaching a school. The trial court granted the injunction and the defendant teacher appealed. In that case an order had been made of record by the board of directors employing the teacher. The formal contract was drawn by the clerk according to law, and was signed in duplicate by the teacher and attested by the clerk. The president of the school board refused to sign, and the failure to sign by the president was the chief ground upon which the district relied to support the contention that the contract was void. It was held under the facts in that case that it was wrongful in law for the president to refuse to sign the contract, and that the district could not in a court of equity have redress for a wrong brought about by its own wrongful conduct in the first instance. The judgment of the trial court was reversed and the bill dismissed. In disposing of the Edmonston case the court remarked that it was not necessary to say whether the teacher could or could not recover for her services in a direct action at law. The facts of that case are substantially on all fours with the facts at bar, and of the legality of the employment of the Edmonston case the court said: "An examination of the proceedings of the board relating to her employment satisfies us that they were regular, and that plaintiff's objection urged thereto are not well taken."

When the board of directors in the cause at bar made the order on April 24th employing plaintiff she had no formal application on file, and defendant contends that plaintiff was not equally bound. Section 11138; supra, provides that both the district and the teacher shall be equally bound by the contract of employment. But when plaintiff signed the formal contract in duplicate as prepared by the clerk she became thereby "equally bound," and the contract of employment became complete.

It is our conclusion that the learned trial court erred in sustaining the demurrer, and in refusing to set aside the nonsuit. The judgment should be reversed and the cause remanded with directions to set aside the nonsuit, and grant to plaintiff a new trial, and it is so ordered. Cox, P.J., andFarrington, J., concur.