Dixon v. Sub-District No. 5

Clark, J. There was no objection to the evidence offered by plaintiff below tending to show that a meeting of the board of directors of said school district had been called to meet at said school house on August 2, 1884, nor that at said time two of the directors — Plamson Cox and William Taylor Timmons — met at said place, nor that said two directors had at said time and place held a meeting of said board, and had employed plaintiff to teach said school for the period mentioned. It was further shown that no proceedings of such meeting had ever been entered in any record of the proceedings of said board of directors. No question is made as to the power or authority of the two directors, being a majority of the board, to make such contract, if acting officially, at a regular or called meeting. The statute provides that a majority shall be a quorum to do business at all meetings of the directors. If such contract was in fact made, it was the duty of the clerk of the board, or if he was absent, one of the directors, to have made an entry of it in the records of the sub-district. Dixon ought not and cannot be prejudiced by the omission or ministerial nonfeasance of the directors or their clerk. The law considers that which ought to have been done as done. It was competent for Dixon to prove by parol, if he could do so, that such contract was actually made. Such evidence would not have been in contradiction of a record, for none was made. Ratcliff v. Teters, 27 O. S., 66, 80, 81; King v. Kenny, 4 O., 79, 82, 83; Mayberry v. Madison, 1 Cranch, 161; 10 East, 350. But, the contention of the defendant is, that neither “the directors of said sub-district, or any board or body having authority, ever employed the plaintiff to teach for any of the period set out in his .petition;” and that the further evidence offered by Dixon of the declarations and admissions made by said directors to him, on the day of said meeting and.soon after leaving said school house on their road home, but separately and short distances from said school house, were incompetent in proof of said alleged contract, as was also the declaration or admission made by said Cox on the next morning after said meeting to, and offered to be proved by, said Motter, but rejected, as was also the others, by the court below. On the other hand, the contention of the plaintiff in error is', that said declarations and admissions — those at any rate of said two directors — -were competent evidence, and that the court erred in rejecting the same [301] as well as in its charge in relation thereto, to the prejudice of plaintiff, and for which the judgment below should be reversed; and this is the question presented for our decision. It is a familiar principle of the law of agency, that the declarations and admissions of an agent, in order to be binding on his principal, must have been made within the scope of the agent’s authority, during the agency, and in regard to a transaction depending at the very time, so as to constitute a part of the act; and not narrative of a past act. The rule is the same as to the declarations and admissions of officers when offered to be proved against the. corporations of which they were members, and is 'as well stated, perhaps, as any place else, in Abbott’s Trial Evidence, p. 44,. sec. 51, Admissions and Declarations made as part of the Res Gesta. “Again, the declarations and admissions of officers and agents may also be proved against the corporation as part of the res gesta, but only when made during the agency, and in regard to a transaction depending at the very time, so as to constitute a part of the act. They cannot be admitted on this ground, if subsequently made, as narrative of a past act, even though they relate to the official duty of the declarant, or were intended in the interest of- the corporation. Hence the declarations of members of a board or committee, as to what the board or committee have done, are not competent. It must affirmatively and explicitly appear that the declaration was made at the time, and not after-wards, or its reception in evidence will be error.” The case of Steinbeck et al. v. The Treasurer of Liberty Township, Delaware County, 22 O. S., 144, was an action to recover on an order drawn by the clerk of the board of education upon the treasurer of said township, to pay for “out-line maps,” etc. The township treasurer, though being in funds, refused to pay it, on the ground that .it had been issued without authority from the board of education. “The only authority of the clerk of the board of education for issuing the order, was an alleged agreement signed by a majority of the members of the board of education. The signatures of these members of the board had been procured to the agreement * * * on application to them individually and separately at their respective residences and places of business, without any meeting being called or held by the members of the board for the purpose, or on the subject of such agreement.” The third proposition of the syllabus of the case, is: “The board of education is made, by the statute, a body corporate, and the contracting of a debt by the board, and the directing the issuing of an order to pay it, are corporate acts which cannot be performed by the individual members of the board acting separately.” White, J., in the opinion, p. 148, says: “The question is, does the alleged agreement which was signed by a majority of the members of the board, and which was the whole authority of the clerk for issuing the order, constitute an order by the board? It seems clear to us it does not. The authorizing a debt to be contracted by the board of education, and the directing its payment out of the public funds, are corporate acts. No' individual member of the body corporate, nor any number of such individual members acting separately, can bind the corporation. Angel & Ames on Corporations, 232. “In the present case there was no authority from the board to execute the agreement. There was no meeting of the members of the board' on the subject. The signing by each of the members of the board who did sign, was his individual and separate act, and unless ratified by the corporate body, imposed no obligation upon it. But there was no ratification.” It. would seem to follow, logically, that if the individual members of a corporate body acting separately, cannot bind the corporation by an agreement, that rJieir declarations and admissions made separately and not while acting as [302] a board, cannot be given in evidénce to establish, or as tending to establish, against the corporation an agreement alleged to have been made by such members. It is true that this was a called meeting of the board of education in the case last cited, but the meeting of the directors had been adjourned, and they had left the place of meeting and separated when the declarations and admissions- offered in evidence were made, or claimed to have been made, and having been made separately, they were not then acting as a board. Besides, they were subsequently made, and narrative of a past act. But, it is strenuously claimed on behalf of plaintiff in error, that they were competent to show notice to him of the acceptance by the directors of his proposition to teach, and being competent for that purpose they were part of the res gesta, and being res gesta they were competent in proof of the agreement as well. If competent to show an acceptance of plaintiff’s proposition to teach, he cannot complain, as for that purpose they were admitted, and the jury so instructed. But, were they part of the res gesta? It seems clear to us that they were not. In the case of The C., C. & C. Railroad Company v. John Mara, 26 O. S., 185, an action by Mara against the plaintiff in error, to recover for injuries received by Mara’s wife while in the act of leaving the company’s car, on which she had been a passenger, the evidence showed that Mrs. Mara’s injuries were occasioned by her falling, or .being precipitated, from the steps or platform of the car into the cattle-guard, and there was evidence tending to show that this was caused by a “jerk,” or sudden start of the train, carelessly and wrongfully pei-mitted by the officers of the company. Mr. Mara, the husband, in his testimony, having particularly described the occurrence, and showing that Nash and the conductor were present at the time of the occurrence, the counsel for plaintiff then asked the following question: “While you and Nash were in the act of getting your wife out of the cattle-guard, immediately after the accident, did Nash ask her how she came to be there; did she make answer to it, and if so, what was it?” The witness replied: “Nash asked her how she came to be thrown in there, and she told him she was jerked in while in the act of getting off the cars.” To the question and answer the counsel for the railroad company objected, but their objection was overruled, and they took exception. The third proposition of the syllabus, is: “In an action against a railroad company for injuries sustained, by a party falling or being precipitated into a ditch, when in the act of landing from a car, it is not competent for the plaintiff to prove what the party said immediately afterward, and while being helped out of the ditch, as to the cause of the accident, it being no part of the res gesta, but a mere account of a past transaction.” Welch, J., in the opinion, says: “We think the court erred in admitting proof of what was said by Mrs. Mara as to the cause of her fall or precipitation into the ditch of the cattle-guard. Although occurring immediately after the accident, it was no part of the res gesta, but a narration of a past transaction, and therefore, mere hearsay. For this error the judgment must be reversed.” » This seems to be drawing the line, as to what is, and what is not res gesta, about as clos^’y as could well be done. We think that the court below .in the case at bar, cud not err in rejecting the evidence for the purpose for which it was offered; and it follows that there was no error to the prejudice of the plaintiff in error in the charge of the court. Judgment affirmed. All concur.