dissenting. — The defendant school district, after it has had the benefit of the plaintiff’s services as a teacher, seeks to avoid paying her upon the technical ground that she taught without a written contract. But I am unable to conclude that under the statute, and the decisions of this court made thereon, the defense can be sustained. It is true, if there was only an oral contract no right of action would *576accrue thereon by reason of a mere offer to perform. Gambrell v. District Township, above, cited. But it is equally true that there may be a recovery where the contract has been performed, though the same was not in writing. Athearn v. Independent District, and other, cases above cited. But it is said that this is so only where the services are accepted and the contract-ratified' by the school district; and the instructions given allowing a recovery in this case are held by the. majority to be erroneous because the right of recovery was ■ not' expressly conditioned upon acceptance and ratification by the school district. The right of recovery was conditioned upon the performance of the contract' by' the plaintiff', and the absence of all legal objections to ¡her teaching. Now T am not prepared to say that mere performance and absence of legal objections would show acceptance and ratifaction by the school district. ■ But the undisputed facts in this cáse are that the plaintiff was told by the subdirector to proceed and perform her contract, notwithstanding it was not .in writing, and she did proceed with his knowledge and approval.' lie alone had power to .contract in'behalf of the school district, and he alone had the control and management of the school house. Code, § 1753.- The school district, then, .through 1 him, as its legally constituted officer, gave her possession bf the school-house, until-she should perform her contract. I think that the action, of the subdirector as shown by the undisputed evidence must be taken as evincing acceptance by the school district of-the plaintiff’s services. If so; the. instructions were not prejudicial even though they might, and perhaps should, properly, have been more explicit.
The objection made; by' the majority of'the; court to the instructions’ that the rule held by them would enable a sub-director to employ a teacher against the consent of the patrons of the school, and against the protest of the board of directors, is not to my mind valid. The law does not give the power to. employ a teacher to the patrons of the school nor to the board of directors, nor does it make their consent necessary. *577The subdirector, who alone is vested with the power to' employ a teacher, may properly enough in the exercise of his discretion have some deference to the wishes of the patrons of the school, and possibly to the wishes of his co-directors. But in the absence of any rules or restrictions imposed upon him by the board, his judgment must in contemplation of law be his sole guide.
When he has employed a teacher it is to be presumed that his judgment has been properly exercised; and when a written contract has been drawn and signed by both subdirector and teacher it becomes the imperative duty of the president to approve and file it, if it conforms to the law and rules of the board. Thompson v. Linn, above cited. It is not for the president to exercise the slightest judgment in regard to the person employed, nor take any one’s opinion in regard to the person. The difficulty in this matter commenced by the president’s listening to objections made against the plaintiff by certain persons who were opposed to her, and by his wrongfully and unlawfully making such objections the ground of his refusal to approve the written contract.
The majority opinion seems to proceed upon the theory, that he is vested with a discretion, in order to protect the school district against the employment of an unsuitable person. But that is evidently not the theory of the law. His approval pertains to a different subject. If the president had performed the duty in this matter imperatively devolved upon him by the law he would have approved the contract. There were no legal objections to it so far as I can discover. If he had approved it as he should have done there would not have been any additional guaranty to the plaintiff’s qualifications. But the law afforded ample protection against a want of qualifications. There is no ground for complaint in this respect. «
My view of this case is that certain disaffected individuals sought by an irregular and unauthorized way to defeat the *578subdirector’s lawful selection of a teacher. Having failed in that they now seek to deprive her of her pay.
The harmony of school districts, the prosperity of the schools, the feeling of good neighborhood, all require that school officers should be kept strictly within the line of their duty, and that no one should be allowed to make any unlawful interference therewith.
I think that the plaintiff was entitled to recover, and I see no prejudicial error in any ruling by which recovery was had’.