Opinion,
Mb. Justice Clark :
Section 4, act of April 11, 1862, P. L. 471, declares that “ no tax for school or building purposes shall be levied, no resol u[426]*426tion shall be adopted for the purchase or sale of any school real estate, no sehoolhouse shall be located or its location abandoned or changed, no teacher shall be appointed or dismissed, .... except by the affirmative votes of a majority of the whole number of directors or controllers thereof; and in each of said cases, the names of the members voting both in the affirmative and negative shall be so entered on the minutes of the board by the secretary,” etc. And in Dennison School D. v. Padden, 89 Pa. 395, and Dyberry School D. v. Mercer, 115 Pa. 559, it was held that in the employment and dismissal of teachers, the requirements of the act must be strictly complied with.
In the first case cited, the plaintiff gave in evidence what purported to be an agreement under seal between Rosa Padden, the plaintiff’s minor daughter, and the school board, by the terms of which, in consideration of certain monthly wages she was to teach in a certain school for the period of six months. The agreement was signed by her and by the president of the board, and was countersigned by the secretary. She taught and received pay for two months, when, for neglect and refusal to obey the instructions of the board she was by formal resolution dismissed. It was held that a contract between the president and secretary of the board, and a teacher, without the concurrence of the board, was invalid and could not be enforced. “By the act of April 11, 1862,” says Mr. Justice Gordon, in the opinion filed, “ teachers can only be selected by the school board; and so specific is this act, upon this subject, that it requires the names of the members voting, both in the affirmative and negative, to be recorded upon ihe minutes. This is the only manner in which teachers can be selected, and from the very nature of things, this power cannot be delegated. Before effect could be given to the contract exhibited by the plaintiff, it was necessary to show, not only that O’Dea was the regularly constituted agent of the board, but that Miss Padden had been selected as a teacher by the previous action of the directors.” The case^last cited was also an action by a school teacher against the school district, to recover damages for refusing to permit her to teach during the term for which she alleged she was employed. Although it appeared that she had actually taught four months, and received payment there[427]*427for, and from the declarations of the members of the school board, that she was to teach three months more, it was held that, in the absence of evidence of her appointment by the minnt.es of the school board, according to the requirements of the statute, she could not recover. To the same effect, also, is Cascade School D. v. Lewis School D., 43 Pa. 318.
In the case at bar, however, the due execution of the contract in suit was admitted. By the nineteenth section of the act of May 8, 1854, P. L. 620, it is provided that all deeds and other contracts in writing, made by a school district, shall be signed and sealed by the president of the board of directors or controllers, and countersigned by the secretary. The contract in suit was executed in this form. The suit was founded upon the contract, and a copy thereof was filed with the statement and affidavit of claim. The. contract was set forth in the statement to be what it purported to be, the contract of the school district, and binding upon the district as such. In the affidavit of defence the validity of the contract is admitted; the defence set up is based upon its terms and conditions. It is not pretended, or in any way intimated or suggested, that it was not executed by authority of the board, in accordance with the requirements of the statute. The facts affecting its execution were peculiarly within the knowledge of the board, and if it was invalid upon that ground, the affidavit of defence should-have set forth the fact. On the contrary, the defence set forth in the affidavit was that the plaintiff, whilst in charge of the Byerly school No. 4 as teacher of said school, had perpetrated acts of cruelty upon a certain child in his care and custody as a teacher; and that, upon a full and fair investigation, he had by resolution of the board been requested “ to resign as teacher of said school; ” that he had refused to resign, and thereupon, “ for the cause of cruelty, as above set forth, he was, by the unanimous resolution of the board of directors, afterwards dismissed and discharged from his employment as teacher ” on the last day of November, of which the plaintiff had due notice; and that, if the plaintiff continued to teach after that date, “ he did so in violation of the action of the board of directors, and contrary to the notice to cease the employment as aforesaid.”
The last clause of the affidavit of defence is as follows, viz.:
“ The said defendant further avers that under and by virtue [428]*428of the terms of the contract upon which the said plaintiff brings this action, the said defendant reserved to the board of directors the right to dismiss the said plaintiff for any of the causes specified in the twenty-third section of the act of May 5, 1854, entitled ‘ An Act for the regulation and continuance of a system of education by common schools,’ one of the causes of dismissal specified in said act being cruelty; and in pursuance of the power and discretion vested in them by the above-recited act of assembly, the terms of said contract, and in discharge of their duties as directors they having dismissed the said plaintiff as aforesaid from his employment aforesaid, for the cause of cruelty so as aforesaid investigated and established, they deny any and all liability of the defendant to the plaintiff as alleged in his affidavit of claim.”
Thus, it will be seen that the original employment of -, the plaintiff as a teacher, and the due execution of the contract, are facts actually or impliedly admitted,• and if they were not, as they are not traversed or denied in the affidavit of defence, they must, under the sixth and eighth rules of practice in the Common Pleas of the county, be taken as admitted. In the cases above cited, the employment of the teacher was explicitly and flatly denied, and the minutes of the board sustained the denial. In this case, however, the regular employment was admitted, and the minutes of the board in respect of his employment were not material to the issue tried, and were not in evidence.
But the learned judge seems to have supposed that, as the statement and affidavit of defence were not formally offered in evidence before the jury, the admissions therein contained did not appear. In this he was clearly mistaken. The affidavits of claim and defence, respectively, are not proper evidence to be considered in behalf of those who make them, and ordinarily they are not intended for the jury. Under the rules of practice referred to, they constitute, as it were, part of the pleadings, their object being to reduce the contest at the trial to the points actually in dispute: Bair v. Hubartt, 139 Pa. 96; and the court should take notice of these admissions as disclosed by the record, and confine the contest to the matters in issue. As we said in Neely v. Bair, 144 Pa. 250: “The object of this and similar rules of court, obviously, is to dispense with the formal proof, [429]
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Opinion,
Mb. Justice Clark :
Section 4, act of April 11, 1862, P. L. 471, declares that “ no tax for school or building purposes shall be levied, no resol u[426]*426tion shall be adopted for the purchase or sale of any school real estate, no sehoolhouse shall be located or its location abandoned or changed, no teacher shall be appointed or dismissed, .... except by the affirmative votes of a majority of the whole number of directors or controllers thereof; and in each of said cases, the names of the members voting both in the affirmative and negative shall be so entered on the minutes of the board by the secretary,” etc. And in Dennison School D. v. Padden, 89 Pa. 395, and Dyberry School D. v. Mercer, 115 Pa. 559, it was held that in the employment and dismissal of teachers, the requirements of the act must be strictly complied with.
In the first case cited, the plaintiff gave in evidence what purported to be an agreement under seal between Rosa Padden, the plaintiff’s minor daughter, and the school board, by the terms of which, in consideration of certain monthly wages she was to teach in a certain school for the period of six months. The agreement was signed by her and by the president of the board, and was countersigned by the secretary. She taught and received pay for two months, when, for neglect and refusal to obey the instructions of the board she was by formal resolution dismissed. It was held that a contract between the president and secretary of the board, and a teacher, without the concurrence of the board, was invalid and could not be enforced. “By the act of April 11, 1862,” says Mr. Justice Gordon, in the opinion filed, “ teachers can only be selected by the school board; and so specific is this act, upon this subject, that it requires the names of the members voting, both in the affirmative and negative, to be recorded upon ihe minutes. This is the only manner in which teachers can be selected, and from the very nature of things, this power cannot be delegated. Before effect could be given to the contract exhibited by the plaintiff, it was necessary to show, not only that O’Dea was the regularly constituted agent of the board, but that Miss Padden had been selected as a teacher by the previous action of the directors.” The case^last cited was also an action by a school teacher against the school district, to recover damages for refusing to permit her to teach during the term for which she alleged she was employed. Although it appeared that she had actually taught four months, and received payment there[427]*427for, and from the declarations of the members of the school board, that she was to teach three months more, it was held that, in the absence of evidence of her appointment by the minnt.es of the school board, according to the requirements of the statute, she could not recover. To the same effect, also, is Cascade School D. v. Lewis School D., 43 Pa. 318.
In the case at bar, however, the due execution of the contract in suit was admitted. By the nineteenth section of the act of May 8, 1854, P. L. 620, it is provided that all deeds and other contracts in writing, made by a school district, shall be signed and sealed by the president of the board of directors or controllers, and countersigned by the secretary. The contract in suit was executed in this form. The suit was founded upon the contract, and a copy thereof was filed with the statement and affidavit of claim. The. contract was set forth in the statement to be what it purported to be, the contract of the school district, and binding upon the district as such. In the affidavit of defence the validity of the contract is admitted; the defence set up is based upon its terms and conditions. It is not pretended, or in any way intimated or suggested, that it was not executed by authority of the board, in accordance with the requirements of the statute. The facts affecting its execution were peculiarly within the knowledge of the board, and if it was invalid upon that ground, the affidavit of defence should-have set forth the fact. On the contrary, the defence set forth in the affidavit was that the plaintiff, whilst in charge of the Byerly school No. 4 as teacher of said school, had perpetrated acts of cruelty upon a certain child in his care and custody as a teacher; and that, upon a full and fair investigation, he had by resolution of the board been requested “ to resign as teacher of said school; ” that he had refused to resign, and thereupon, “ for the cause of cruelty, as above set forth, he was, by the unanimous resolution of the board of directors, afterwards dismissed and discharged from his employment as teacher ” on the last day of November, of which the plaintiff had due notice; and that, if the plaintiff continued to teach after that date, “ he did so in violation of the action of the board of directors, and contrary to the notice to cease the employment as aforesaid.”
The last clause of the affidavit of defence is as follows, viz.:
“ The said defendant further avers that under and by virtue [428]*428of the terms of the contract upon which the said plaintiff brings this action, the said defendant reserved to the board of directors the right to dismiss the said plaintiff for any of the causes specified in the twenty-third section of the act of May 5, 1854, entitled ‘ An Act for the regulation and continuance of a system of education by common schools,’ one of the causes of dismissal specified in said act being cruelty; and in pursuance of the power and discretion vested in them by the above-recited act of assembly, the terms of said contract, and in discharge of their duties as directors they having dismissed the said plaintiff as aforesaid from his employment aforesaid, for the cause of cruelty so as aforesaid investigated and established, they deny any and all liability of the defendant to the plaintiff as alleged in his affidavit of claim.”
Thus, it will be seen that the original employment of -, the plaintiff as a teacher, and the due execution of the contract, are facts actually or impliedly admitted,• and if they were not, as they are not traversed or denied in the affidavit of defence, they must, under the sixth and eighth rules of practice in the Common Pleas of the county, be taken as admitted. In the cases above cited, the employment of the teacher was explicitly and flatly denied, and the minutes of the board sustained the denial. In this case, however, the regular employment was admitted, and the minutes of the board in respect of his employment were not material to the issue tried, and were not in evidence.
But the learned judge seems to have supposed that, as the statement and affidavit of defence were not formally offered in evidence before the jury, the admissions therein contained did not appear. In this he was clearly mistaken. The affidavits of claim and defence, respectively, are not proper evidence to be considered in behalf of those who make them, and ordinarily they are not intended for the jury. Under the rules of practice referred to, they constitute, as it were, part of the pleadings, their object being to reduce the contest at the trial to the points actually in dispute: Bair v. Hubartt, 139 Pa. 96; and the court should take notice of these admissions as disclosed by the record, and confine the contest to the matters in issue. As we said in Neely v. Bair, 144 Pa. 250: “The object of this and similar rules of court, obviously, is to dispense with the formal proof, [429]*429on trial, of all such facts and circumstances, material to the plaintiff’s case, as the defendant shall be required to deny under oath, which facts, if not so denied as required by the rule, shall, for the purposes of the trial, be taken as admitted. A proper system of practice under such rules, greatly facilitates and expedites tñe trial of causes, and often relieves the jury from the consideration of a heterogeneous mass of testimony bearing upon facts which the defendant cannot deny, but which the plaintiff would otherwise be required to establish by formal proof. The controversy is thus narrowed down to such items of claim aud material matters of fact as are really disputed. In such cases, it is the province of the court to examine the respective affidavits, and thus ascertain what items of claim, and averments of fact in support thereof, are not denied by the defendant, and then confine the testimony to such items of claim and material averments of fact as are denied.” The plea of non assumpsit is a broad plea, but it is plain that it does not deny what is thus admitted of record.
The board of school directors had the power to dismiss this teacher for incompetency, cruelty, negligence, or immorality. This power is expressly given in paragraph V., § 23, act of May 8, 1854, P. L. 622, and was reserved in the contract. As a deliberative body, a board of school directors is intrusted with the government of the schools, and by the statute is empowered both to employ teachers, and for the causes stated to dismiss them. The board, therefore, had jurisdiction under the statute to pass upon any charge of this character, and in its determinations was held merely to the exercise of good faith, and was answerable only for an abuse of its powers. By the mere fact of his employment as a teacher, the plaintiff submitted himself to the jurisdiction of the board in respect of the matters mentioned in the statute, and the action of the board, if it be entered upon the minutes in the form required by the statute, is conclusive. But the action of the board in effecting the dismissal of a teacher must be set forth upon the minutes, as required by the statute. The minutes are therefore the best evidence of the teacher’s dismissal, and are conclusive, unless the board may be shown to have acted corruptly or in bad faith, and to have clearly abused its powers. The admission of evidence on the [430]*430part of the defendant as to the circumstances of cruelty alleged, was therefore erroneous.
The judgment is reversed, and a venire facias de novo is awarded.