Brookfield v. Drury College

123 S.W. 86, 139 Mo. App. 339, 1909 Mo. App. LEXIS 498

• Court: Missouri Court of Appeals
• Decided: December 6, 1909
• Status: Published

Opinion

OPINION.

NIXON, P. J. —

It will appear from the foregoing evidence that the defendant, Drury College, is located in Springfield, Missouri, and that it was organized and constituted a body politic and corporate under the laws of Missouri, “for the purpose of promoting the higher education and Christian culture, by founding and forever maintaining a school of liberal learning.” The entire powers conferred upon the corporation, as appears by its charter, were vested in and to be exercised by a board of trustees of twenty members, of which seven members should constitute a quorum to transact business.

• In May of the year 1906, the plaintiff was a teacher and graduate student residing in Chicago, Illinois, and was an educator of eighteen years’ experience. Dr. Kirbye was then President of Drurv College. He called on her at her home, and according to her statement, offered her the position of Dean of Women at Drury College for two years at a salary of $1,000 per year and a home at M'cCullagh Cottage. She took the matter under advisement, and sometime in June of that year, was notified by President Kirbye that she had been elected to the position by the board of trustees of th'e College at its annual meeting on June 6th. In response to such notice, she telegraphed her acceptance. She says that her agreement with President Kirbye was for two years’ employment as teacher in the College, but as will hereafter be seen, when she was elected to the position by the board of trustees, no time was specified. The duties of the position as Dean of Women required that she should have charge of the young ladies in the College and professional supervision over their studies, and she was also to be a teacher of English Literature. She was informed before her services commenced that the board of trustees had never been in the habit of making written contracts with teachers, and that the election by the board of trustees at their annual meeting was final.

About the time when school commenced at the College in 1906, she came to Springfield, entered the employ of the College, assumed the duties of the position to which she had been elected, and was given a home in McCullagh Cottage. She continued to discharge her duties from that time until the time when she was removed by a letter from the executive committee, dated July 5, 1907, in which she was notified to immediately sever her connection with the institution, and in which it was stated:

“The executive committee of Drury College at its meeting of July 3,1907, in accordance with instructions given by the board of trustees, at the meeting of that body in St. Louis on June 18th, after careful consideration, decided that the best interests of the College and yourself require an immediate severance of your connection with the institution. It is believed by the members of the board that the spirit and purpose of the. institution and the atmosphere of its environment are not consistent with the educational ideals to which you have been accustomed. They believe also that the peculiar conditions which at present surround the College would make effective service especially difficult for you and that a continuation of your position there would result in disappointment to you and to its constituency.”

The following entry also appears on the records of the board of trustees in relation to her removal:

“Be it- resolved by the board of trustees that the action of the Executive Committee at meeting of July 3, 1907, in demanding the resignation of Miss Mary P. Brookfield as Dean of Women in Drury College is in full accord with the wishes of the board of trustees, expressed at the board meeting held June 18, 1907, and said action by said executive committee. It is here now in all things approved and confirmed.”

Her original employment — sorcalled—is evidenced by an entry on the minutes of the board of trustees which is as follows:

“June 6, 1906. Voted Mary P. Brookfield be elected Dean of Women of Drury College at a salary of $1,000 and home.”

Prom September 1, 1906, to September 1, 1907, her salary was paid her by monthly installments of $83.33 1-3, the last payment being made in October, 1907.

The annual meeting of the board ■ of trustees was held on the 6th and 7th of June, 1907. At this meeting, she was before the board and made a report of her stewardship as dean and laid before the trustees her plans for future work.

I.

It is claimed by the plaintiff in her petition that in June, 1907, the defendant corporation made a contract whereby it hired her for a period of one year ensuing, and the trial court found that her contract was for just one year commencing at the annual meeting of the board in June, 1907.

The most careful examination of the evidence as to what was said and done at the meeting in June, 1907, reveals no such contract. It is claimed that certain resolutions were read, the acceptance of which by the plaintiff constituted the said contract. The significance of these resolutions, in the light of the surrounding circumstances, cannot be misunderstood. The resolutions speak in no uncertain tone. They contain the final decision of the board relating to the troubles of Drury College. A crisis had arisen in the government of the institution and the supreme authority of the board of trustees, given by its charter to manage the affairs of the College, had been challenged. Rival factions were struggling against each other for control, a divisive spirit had grown strong, and Drury College was threatened with disintegration. To quell this spirit and bring about harmony and unity in the management of the institution was the purpose of the resolutions. All the faculty and other officers of the College were called before the board at this meeting, and these resolutions were read to them as the final views of the board. They exhorted the officers and servants of the institution, one and all, to loyalty to Drury; asked them to preserve the historic spirit of the institution and all that was best in its history, by making the ensuing year a year of advance and not of retreat, of victory and not of defeat. There can he no misconstruction of these resolutions, and there is no ground to contend that they contain any contract whatever as to the employment of teachers of the institution.

At that meeting when the hoard of trustees made up their committees for the coming year, the plaintiff was appointed on the committee of conservatory of music and art department. She says in this connection, that after the resolutions were read, she was desirous” of continuing her employment in the College and consented to, remain, and continued her preparations for the coming year.

Whatever any person may have said at the time of this meeting as to the contents of the resolutions can receive no consideration at our hands. The resolutions that were read at the meeting are in evidence and this court is to construe them, whatever may have been said by other persons at the time as to their contents. They certainly contain no language that can be construed as an employment of the plaintiff for one year from June, 1907, to June, 1908.

It is to be recalled in this connection that at the;, previous annual meeting, plaintiff had been elected for | an indefinite term of service, and up to the second'' annual meeting, she had never been re-employed or discharged. These resolutions did not change the plaintiff’s existing indefinite employment as teacher into a definite employment to begin at a certain time and end at a certain time; much less do they constitute a re-employment for a calendar year commencing in June, 1907. Wfr&t was said and done by the plaintiff and others at that meeting, so far as it had any relation to the employment of teachers, was simply and solely a recognition and ratification of an existing status of things and not an attempt to make a new contract; nor was it a re-employment. She had been in the service of the defendant as Dean of Women, was still acting in that capacity, and these resolutions, at the utmost, only recognized that she was still to continue in that position. Such being the case, her contract continued to be one for an indefinite period of time. The law in this State has been well stated that an indefinite hiring at so much per day, or per month, or per year, is a hiring at will and may be terminated by either party at any time and no action can be sustained in such case for a wrongful discharge. [Finger v. Brewing Co., 13 Mo. App. 310; Evans v. Railroad, 24 Mo. App. 114; Harrington v. Brockman Commission Co., 107 Mo. App. 418; see also, Greenway v. Early, 23 N. Y. Suppl. 1009; De Briar v. Minturn, 1 Cal. 451.] In Volume 26 of the Cyclopedia of Law and Procedure, it is stated: “In the United States, a general or indefinite hiring is presumed to be a hiring at will.” All the evidence is consistent with an indefinite hiring of the plaintiff except her own testimony.

There seems to be some ambiguity in this case as to the meaning of the word “year,” as used in the resolutions and in the evidence, as well as in the meaning of the word “commencement.” These words, when used by educators and teachers, have a special meaning. The word “year,” when so used, without any qualifying clauses, means a college year and not a calendar year. The word “commencement” does not mean the commencement of the college year, according to American usage, but does mean the last day of the college year when the honors and degrees of the institution are conferred upon the graduating class. [Century Dictionary, “Commencement.”]

The commencement — or last day in the college year —in Drury College for the year 1908 was June 11th. The board of trustees, as a part of their duties, at each annual meeting fixes the time of their next annual meeting, thereby fixing the date of commencement day for the ensuing year (under the provisions of the charter). In the absence of other evidence, the law presumes that at the annual meeting in June, 1907, the trustees discharged this duty and thereby fixed commencement day for the ensuing year as June 11, 1908. It is the presumption of law that the usual and ordinary course of business has been pursued in a business tranaction. [Ivy v. Yancey, 129 Mo. 501; Long v. Joplin Mining & Smelting Co., 68 Mo. l. c. 431.]

If the plaintiff was employed at the meeting of the board in June, 1907, for a year — meaning a college year — her term would expire on commencement day, 1908, a period of one calendar year and five days after the making of the contract. This would bring the contract, according to the authorities hereihafter cited, within the meaning of the Statute of Frauds.

II.

Considered from another viewpoint, the plaintiff’s case is condemned by her own evidence; she has given her construction of the so-called contract, which, if believed, brings the case clearly within the Statute of Frauds. She testified that her work under this contract of June, 1907, was to continue until the opening of school in September, 1908: “I did not consider that my work had ended and would not until September, 1908.” “My understanding would be that my first year under the agreement did not end until the opening of school in September, 1907.” Her evidence became the more important from the fact that it was the only oral evidence offered in her behalf that undertook to fix precise time limits to her contract.

The law of evidence as to admissions and statements of a party to the record and in interest, when made contrary to his attitude on the trial, or as to admissions negativing the averments made in his petition, is that such admissions are competent evidence against him whenever or wherever made. [Steinberg v. Insurance Co., 49 Mo. App. 255; Padley v. Catterlin, 64 Mo. App. l. c. 641; Schradski v. Albright, 93 Mo. 42; Kritzer v. Smith, 21 Mo. 296; Charleston v. Hunt, 27 Mo. 34; State v. Bank, 80 Mo. l. c. 633; Pomeroy v. Benton, 77 Mo. 54; Bogie v. Nolan, 96 Mo. 85.]

It is not essential to constitute a statement of a party an admission that such party should have personal knowledge of the facts admitted. Where a party believes a fact to be true, upon evidence sufficient to convince him of its truth, his statement of such a fact, if against his interest, is admissible. [Sparr v. Wellman, 11 Mo. 230; Erskine v. Loewenstein, 82 Mo. l. c. 308.]

In the case under consideration, plaintiff’s evidence should have been restricted to a statement of the facts. It was not competent for her to give her conclusions as to what the contract was and thereby bind the defendant. It was the province of the court, from the facts, to draw such conclusion. [Sparr v. Wellman, supra.] But having stated her conclusion, it was evidence against her.

If the contract was therefore as she has stated it, it would fall w,ithin the statute of frauds. There can be no claim made under the evidence in this case that there was a compliance with the Statute of Frauds. The language of the statute (section 3418, R. S. 1899) is as follows:

“No action shall be brought to charge . . . any person . . . upon any agreement that is not to be performed within one year from the making thereof, unless the agreement upon which the action shall be brought, or some memorandum or note thereof, shall be in writing and signed by the party to be charged therewith, or some other person by him thereto lawfully authorized. . . .”

The only suggestion of a memorandum of her contract is the minutes on the records of the board of trustees of June 6, 1906, and the written resolutions read at the annual meeting of June 6, 1907. As to both of these memoranda — if such they can be called — it is sufficient to'state that they wholly fail to set forth the terms of the contract of hiring, when it should commence, when it should end, how and when the payments were to be made and the nature of the services to be performed. Such memoranda cannot be pieced out by parol evidence so as to make out the contract set out in plaintiff’s petition. The introduction of parol evidence in such cases is the very mischief which the Statute of Frauds seeks to remedy. The memorandum must contain the entire contract. [Ringer v. Holtzclaw, 112 Mo. 519; Kelley v. Thuey, 143 Mo. 422; Rucker v. Harrington, 52 Mo. App. 481; McKeag v. Piednor, 74 Mo. App. 593; Bruckman v. Hargadine-McKittrick Dry Goods Co., 91 Mo. App. 454; Biest v. Ver Steeg Shoe Co., 97 Mo. App. 137; Darnall v. Lafferty, 113 Mo. App. 282 and cases cited.]

As to these resolutions, there is no evidence that they were signed by the party to be charged, the evidence being that no record of them was made, and they were not signed by any person. The fact that her services could have been completed within one year after such services were to be commenced, does not relieve the contract from the effect of the Statute of Frauds. The year, designated by the statute, commences from the date of the agreement and ends at the time its performance was to be completed; and although the contract might be completed within one year from the time that its performance was to commence, this does not take it out of the Statute of Frauds. [Sharp v. Rhiel, 55 Mo. 97; Briar v. Robertson, 19 Mo. App. 66; Cook v. Redman, 45 Mo. App. 397; Chase v. Hinkley (Wis.), 105 N. W. 230, 2 L. R. A. (N. S.) 738; see also note, 2 L. R. A. (N. S.) 738.]

We conclude from the survey of this case that the board of trustees of Drury College were, under the contract made with the plaintiff, vested with the authority to remove her. For the proper protection of the high interests with which they are intrusted and for the proper discharge of the great trust vested ip them— while acting in good faith in her removal — they are responsible only to the founders and patrons of Drury College and to their own consciences.

The demurrer to the evidence should have been sustained by the trial court. The case is accordingly reversed.

All concur.