Imágenes de páginas
PDF
EPUB

Fertich v. Michener.

Goodwin v. Goodwin, 48 Ind. 584, and Western Union Tel. Co. v. Hamilton, 50 Ind. 181.

The petition in this case fails to specify the particular causes, or any particular cause, on account of which the opinion heretofore announced is supposed to be erroneous, and hence does not comply with the rule in regard to rehearings above stated. An elaborate brief has, however, been filed in support of the petition, and as the case is, in many respects, one of public interest, we will nevertheless briefly consider some of the argumentative causes for a rehearing assigned by the brief.

It is claimed that the constructions we placed respectively upon the sixth and eighth instructions given by the circuit court are erroneous, because there is nothing either in the textbooks, or in any of the previously decided cases, which sustains the distinction recognized by us between the reasonableness of a rule adopted for the government of a public school and the unreasonable or improper enforcement of such a rule. This claim is based upon the alleged ground that such a rule to be valid must have a uniform and humane operation upon all alike, and must be of a character to restrain all school officers from inflicting cruelty or injustice on the one side, or from granting special indulgences to particular pupils on the other side, under its authority. We agree that such a school regulation must be operative on all alike; but by that is meant that it must apply to all alike under the same circumstances, that is, to all similarly situated. It is only in this sense that the most sweeping provisions of a statute can be made to have a uniform application. We have a statute which makes railroad companies liable for stock killed at places on their roads which are not securely fenced, and yet we have uniformly held that the provisions of that statute do not apply to places at which public policy does not permit fences to be erected. Under the strict letter of the statute, the deliberate and intentional killing of one person by another is murder, and

Fertich v. Michener.

yet, however deliberately and intentionally one may kill another in battle, the former stands excused by the unwritten, but higher, law of war. We might give many other illustrations of the flexibility of general as well as of positive

statutes.

One of the most thoroughly established rules in the government of a school permits a teacher to punish a pupil for a violation of good order and necessary discipline, and the reasonableness of such a rule, as an abstract proposition, has never, as we are aware, been seriously questioned; but the nature and extent of the punishment which may be thus inflicted have always been made to depend upon the circumstances of each particular case. Cruel or excessive punishment has ever been construed to be both an unreasonable and an improper enforcement of this long established rule.

That abuses may be practiced in the pretended enforcement of a rule adopted for the government of a school, affords no argument against the reasonableness of the rule, having reference to the legitimate purposes for which it was adopted.

The distinction between the reasonableness of a school regulation, general in its character, and its negligent or improper enforcement, which we have attempted to define, however novel in form, is nothing more than a logical deduction from the general principles firmly and continuously recognized in the government of schools, and especially public schools. This view is amply sustained by the illustrations we have already given.

In answer to criticisms made upon our construction of some parts of the evidence, we need only state, in general terms, that we might well have contented ourselves with saying at the former hearing that, however much at fault the appellee's teacher may have been in regard to any of the matters complained of in the complaint, there was no evidence either showing, or fairly tending to show, that the appellant had any actionable connection with, or personal responsibility for, the mistakes or misconduct of the teacher touching such

Stringer v. Montgomery et al.

matters. Such was in effect our conclusion at the time, and nothing has been since adduced to change our conclusion in that respect; consequently, as the evidence did not make a case against the appellant, the appellee has no cause to complain of our view of the evidence in its abstract application to what may have occurred between her and her teacher.

Conceding our view of the evidence, in the respect last stated, to be erroneous, it does not affect the merits of the controversy between the appellant and the appellee. But, considering the immunity which the law extends to a teacher who acts in good faith and is impelled by proper motives in the government of his school, we see no reason to change our formerly intimated, if not expressed, opinion that the evidence would not have sustained an action against the appellee's teacher if she, instead of the appellant, had been the defendant.

Other questions are discussed by counsel, but nothing is offered which throws any new light upon the cause as it was originally presented.

On the general subject here discussed, further reference is made to 25 Central Law Journal, 339.

The petition for a rehearing is overruled.
Filed Nov. 5, 1887.

No. 13,162.

STRINGER v. MONTGOMERY ET AL.

CONVEYANCE.-Trust.—Gift.—Recovery of Possession.—Quieting Title.--Where
the purchasers of land have the legal title conveyed to another, who
pays no part of the consideration, the latter, in the absence of facts
showing a gift of the property, becomes a trustee for the purchasers, and
after a conveyance of the trust estate at the request of the beneficiaries,
can not maintain an action to recover possession or quiet title.
SAME.-Evidence.- Written Instruments.-In such case it is proper to show

111 489

d156 63

Stringer v. Montgomery et al.

all the transactions between the parties, and the written instruments relating to the acquisition and disposition of the property are admissible in evidence. SAME.--Married Woman.-Suretyship.-Trust Estate.-The conveyance by a married woman, to secure her husband's debt, of property held by her in trust for him, is not invalidated by the statute prohibiting her from entering into a contract of suretyship, as such statute applies only to property owned by her in her own right.

From the Hendricks Circuit Court.

T. E. Ballard, E. E. Ballard, S. M. Bruce and M. E. Clodfelter, for appellant.

E. C. Hogate, R. B. Blake and J. V. Hadley, for appellees.

ELLIOTT, J.-The questions which control this case arise on the facts stated in the special finding, and these facts may be thus summarized: The appellant's husband, Henry D. Stringer, and Bedford Shobe were partners doing business in Sedalia, Missouri, under the firm name of Stringer & Shobe. They were the owners, by a defective title, of a house and four lots in Sedalia, and one Mrs. Henry was the owner of a large tract of land in Monroe county, Missouri, which she proposed to exchange for the house and lots and a business block to be acquired by the firm. A contract was entered into between the parties wherein Mrs. Henry agreed that, in consideration of the payment to her of four thousand dollars in money and the conveyance of the house and lots and the business block in Sedalia, she would convey to Stringer & Shobe the land owned by her in Monroe county. In order to enable Stringer & Shobe to effect the exchange, it became necessary to raise $10,800, for the purpose of paying for the business block, "to cover the house and four lots" and to pay Mrs. Henry the four thousand dollars agreed upon. Stringer & Shobe employed one J. R. Stewart to assist them in raising the money required, and agreed to pay him one-half of all the profits that might be realized. Stewart obtained from James C. Thompson a loan of the money, and it was agreed that, instead of one-half of the

Stringer v. Montgomery et al.

profits, the compensation should be twenty-five hundred dollars. Montgomery was employed to render services as an attorney, and it was agreed that he should receive one-third of the twenty-five hundred dollars as his compensation. The money was obtained on mortgage executed on the Monroe county land, and both Stringer and Shobe were insolvent. Without any consultation with Mrs. Stringer, it was agreed that the title to the land should be placed in her name, but she paid no part of the consideration, and took no interest in the transaction beyond executing the necessary conveyances and papers. Pursuant to this agreement, deeds were executed and exchanged on the 26th day of June, 1883, and on that day three mortgages were executed on the Monroe county land, the first to T. W. Marshall for $8,000, the second to John Montgomery, one of the appellees, for $2,800, and the third was also executed to him to secure $2,500. Some personal property was also purchased of Mrs. Henry by Stringer & Shobe. Possession of the Monroe county. land was taken by them, and repairs were made with money received from rents.

On the 13th day of December, 1883, pursuant to an agreement between Stringer & Shobe and Montgomery and Thompson, the appellant and her husband conveyed, by a warranty deed, part of the Monroe county land to Lewis S. Watts, and received from Watts in exchange the property in controversy, situate in Danville, in this State. The sole consideration for the conveyance of this property was the conveyance of part of the Monroe county land, and the mortgages on that land were, by agreement of the parties interested, to be transferred to the property in Danville. The appellee Montgomery, in execution of this agreement, released his mortgages on that land and accepted mortgages on the Danville property, but the holder of the $8,000 mortgage refused to transfer his mortgage security to Indiana.

In December, 1883, at the special request of Stringer & Shobe, the appellee Montgomery accepted a warranty deed,

« AnteriorContinuar »