Hostettler v. Mushrush

<p>Abstract of the Decision.</p> <p>1. Instructions, § 16*—when must he harmonious. A series of instructions must be harmonious and not misleading.</p> <p>2. Instructions, § 16*—when erroneous for laclo of harmony. Instructions constituting a series, in an action by a school teacher against a school district for breach of a contract of hiring, and in which the issue was as to whether plaintiff was to be hired to teach the whole school or only the advanced grades as principal, one of which tells the jury they must find for the defendants unless the plaintiff proved that he was employed to teach the principalship, another of which tells them that plaintiff may recover if he has proven that he was employed to teach the school, another of which tells the jury that one promise is a good consideration for another, and that the plaintiff may recover if he proved that he was employed to teach the principalship, held inharmonious and misleading.</p> <p>3. Schools and school districts, § 174*—what evidence admissible in action for breach of contract to hire teacher. Where the question in issue in an action by a school teacher against a school district for damages for breach of a contract of hiring was as to whether the plaintiff was employed to teach as principal of the higher grades or to teach the entire school, and In which the testimony of a witness for plaintiff that one of the directors had told a certain person in her presence that he had hired plaintiff for the higher grades was denied by such director, a letter written subsequently to such conversation by plaintiff’s witness to such director inquiring as to whether he had hired a teacher for the primary room or intended to have only one teacher, was admissible as going to the credibility and weight to be given to the evidence of such witness.</p> <p>4. Master and servant, § 42*—what is remedy for breaeh of contract when no services performed. Where no services are performed under a contract of hiring, the action must be for a breach of the contract.</p> <p>5. Master and servant, § 52*—what is measure of damages for breaeh of contract of hiring. The measure of recovery for breach of a contract of hiring, where no services have been performed, is the wages to be paid, less any sum actually earned or which might have been earned by the exercise of reasonable diligence in- seeking other similar employment.</p> <p>6. Master and servant, § 47*—who has burden of proof in action for breach of contract of hiring. The burden of proof in an action for breach of contract of hiring, no services having been performed, is upon the defendants to show that plaintiff did earn, or by reasonable diligence could have earned, wages in other similar employment.</p>