Taggart v. School District No. 1

Petition for Rehearing.

( 191 Pac. 659 .)

BURNETT, J.

Substantially, in her petition for rehearing, the plaintiff contends that the findings of fact filed in the Circuit Court are equivalent to a verdict which Article VII, Section 3, of the state Constitution forbids us to disturb unless it can be said there is no evidence to support it; and further, that because the defendant, in its proposed findings of fact submitted to the trial court, admitted, and in its brief in this court conceded that, the plaintiff had earned $245, instead of only $205 as stated in the answer, by virtue of her service as a substitute teacher, she is now entitled to judgment for the greater amount.

2. The allegation of the complaint to the effect that the plaintiff was employed continuously as a regularly appointed teacher is tantamount to a declaration upon an express contract. Having thus laid her case, the plaintiff was bound to prove it when traversed, as it was in this instance, for the allegations and proofs must correspond: Craft v. Dallas City, 21 Or. 53 ( 27 Pac. 163 ); Wilkes v. Cornelius, 21 Or. 348 ( 28 Pac. 135 ); Boring Lumber Co. v. Roots, 49 Or. 569 ( 90 Pac. 487 ); Boothe v. Farmers Nat. Bank, 47 Or. 299 ( 83 Pac, 785 ); Eastman v. Jennings-Mc *99 Rae L. Co., 69 Or. 1 ( 138 Pac. 236 , Ann. Cas. 1915A, 185).

3. The findings of fact, which for the purposes of this case may be considered as a special verdict, show that she was not employed as a regularly appointed teacher. In other words, she failed to prove an express contract, in that she did not produce a written agreement made between the directors and herself and filed with the clerk: Subd. 7, § 1, Chap. 172, Laws 1913. As indicated in the former opinion, the findings do not sustain the judgment. In the constitutional phrase, speaking by the record, we affirmatively say “there is no evidence to support the verdict.”

4, 5. Under the peculiar circumstances of the pleadings in West v. Eley, 39 Or. 461 ( 65 Pac. 798 ), it was intimated that under an averment in quantum meruit, evidence of an agreement and the price of the services was admissible, presumably because parties would not probably agree on a value, if the same was unreasonable. But the reverse is not necessarily true, as a matter of law, and there is no reason adduced why the rule fixed by the precedents cited should be disturbed, viz., that the proofs must correspond to the allegations, so that, having counted on an express contract, that kind of a covenant must be proved. In the matter of the employment of teachers, the statute has fixed within strict limits the method by which both they and the directors must be bound. In administering the law we cannot depart from the legislative direction concerning the sole memorial to be made by the parties to such employment.

6. As to the amount to be recovered, the case presented by the plaintiff is one where after the trial is over and the judgment is rendered a party discov *100 ers some new testimony, in this instance an admission by the opposite party, which might have been admitted in evidence at the trial under proper pleadings. It is too late for that, now; and it is only by a liberal construction of the pleadings, to which alone at this stage of the litigation the quéstion is referable, that judgment can be rendered in favor of the plaintiff for $205, the amount tendered and brought into court. The plaintiff had an opportunity to accept the proffered findings allowing $245, but caused the court to reject them. She cannot thus speculate on the final result of the case and, having failed in the outcome, now mend her hold and take more than the answer concedes.

The petition for rehearing is denied.

McBride, C. J., and Johns, J., absent.

Reversed and Remanded "With Directions.

Rehearing Denied.