Swafford v. Board of Education

COOPER, C.

This is an appeal from a judgment and an order denying motion for a new trial. The complaint alleges that in the month of December, 1894, the defendant, as a corporation, “by a resolution duly elected and employed the said plaintiff as teacher of the Petaluma High School” for the term of six months, commencing on the first day of January, 1895. “That the salary and compensation attached to the position of teacher of said school, and which the said plaintiff was to receive according to the terms of said resolution and contract of employment, was one hundred and sixty-five dollars per month for said term of six months.” That plaintiff entered upon his duties as such teacher and taught said school up to February 20, 1895, when defendant paid him two hundred and forty-seven dollars and fifty cents, being his salary in full up to said time, and, that the defendant then wrongfully discharged him and refused to allow him to complete his term under his contract. Damages are

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asked in the sum of seven hundred and forty-two dollars and fifty cents, being the amount that it is claimed plaintiff would have earned at the rate agreed upon if allowed to complete his term according to contract. The case was tried without a jury. The learned judge of the court below, after hearing the evidence, found that the defendant never, by resolution or otherwise, employed the plaintiff for the term specified, or for any other term, and that no fixed salary or compensation was attached to the position of such teacher. That the defendant never wrongfully or in any manner prevented plaintiff from performing any services or duties, and that plaintiff has not been damaged by defendants in any sum or at all. Judgment was accordingly entered against plaintiff March 7, 1898. The notice of appeal from the judgment was not served or filed till April 11, 1899, and counsel for defendants object to the appeal from the judgment being considered because not taken within the time prescribed by statute. The plaintiff’s attorney concedes that the appeal was not taken in time and therefore the appeal from the judgment will not be considered. This leaves for consideration the appeal from the order denying the motion for a new trial. The attorney for plaintiff in his opening brief says that he “will not touch upon matters respecting the judgment in so far as a reviewing of the evidence is concerned, but will direct attention to errors of law upon which appellant relies.”- It will, therefore, be assumed that the findings are supported by the evidence and that the judgment is the legal conclusion from the facts found.