ON PETITION FOR REHEARING A petition for rehearing has been filed herein. See67 P.2d 192. School District No. 14 was organized as a separate school district on June 8, 1932. Desiring to obtain a separate distribution of future funds, it insisted upon entering into a contract with the old district, No. 21. This contract is set out in the original opinion. It shows upon its face that an apportionment was sought to be made under Section 99-901, R.S. 1931. We held that under the facts existing in this case no apportionment or division of property was authorized under the section above mentioned. That part of our decision is not attacked in the petition for rehearing. But we held further that the action is one upon the contract above mentioned, and that, since the contract is void, nothing can be recovered in this action. We accordingly directed the trial court to dismiss the action. Counsel for plaintiff contends that we should have remanded the case for a new trial; that the action is not one upon the contract, but is an action to recover under Section 99-309, Rev. St. 1931, which, in so far as pertinent, reads as follows:
"Whenever the district boundary board shall have formed or established a new district from districts already legally organized, the school board of such newly organized district may draw its proportion of the public school funds for paying teachers or other necessary legal school expenses from the school treasury of the district from which it was separated until such time as the newly organized district shall receive its proper apportionment of school moneys and taxes." *Page 385
We think that counsel for the plaintiff is in error in contending that the action was not one on contract. The petition alleges the establishment of the new district and the existence of the old; that the districts agreed upon the proper apportionment of school moneys and taxes; that they entered into a contract on October 23, 1932, whereby the defendant agreed to pay plaintiff the sum of $1307.25, in three instalments, one instalment of $425 due April 1, 1933, and two others, one of which was made payable in each of the succeeding years; that the contract was approved by the district court; "that defendant has failed and refused and neglected to pay the aforesaid sum of $425.00 which was due and payable on or before April 1, 1933, and the same is long since due and owing to plaintiff, and defendant has expressed its intention of refusing to pay all or any part of the aforesaid sum of $1307.25, wherefore the whole thereof is now due and payable to plaintiff." Thus plaintiff relied upon recovery of the whole sum by reason of the fact that default had been made in the payment of one of the instalments mentioned in the contract. Judgment is prayed for $1307.25 and interest. Plaintiff further pleaded in paragraph 7 of the petition "that defendant has wholly failed, refused and neglected to allow plaintiff to draw from the school treasury of the defendant district the sum of $1307.25 or any part thereof, and has wholly failed, refused and neglected to allow plaintiff to draw its proper proportion of the school funds [for paying teachers or other necessary legal school expenses] from the school treasury as by law provided, to the damage of plaintiff in the sum of $1307.25." The words enclosed in the bracket as above mentioned, namely, "for paying teachers or other necessary legal school expenses," (words contained in Sec. 99-309, supra) were stricken out of the petition by counsel for School District No. 14 with the consent of the court, thus indicating *Page 386 that the petition was not based upon the provisions of Section 99-309, supra, but upon the contract, which, as stated before, we held to be unauthorized. This theory of the petition is borne out by the evidence in the case introduced on behalf of School District No. 14. It was shown that the contract was entered into, and it was introduced in evidence. Plaintiff did not attempt to show what portion of the funds which School District No. 21 had on hand justly belonged to School District No. 14. Nor did plaintiff attempt to show the amount of expenses incurred so as to come within any of the provisions of Section 99-309, supra.
Counsel for plaintiff, however, maintains that the contract was merely used as evidence. But if that was his theory, he should not have pleaded the contract. Evidence should not, ordinarily at least, be pleaded. 49 C.J. 40. Moreover, the contract, clearly entered into, as it was, under the provisions of Section 99-901, supra, is wholly void, and cannot be used as evidence for the recovery herein under Section 99-309, supra.
We think, even after reading the vigorous assertions of counsel for plaintiff to the contrary, that the petition, fairly construed, presents an action on a contract. A petition should proceed upon a definite theory, and state the facts essential to support that theory. 49 C.J. 117, 165. And that theory must be determined from its leading averments, and the general scope and tenor of the pleading, and the theory most apparent and clearly outlined by such consideration will be adopted rather than another possible theory which may be, to some extent, indicated by a consideration of the formal part or fragmentary statements. 49 C.J. 167. In the petition in the case at bar, the contract is emphasized; the averments in that connection are the leading averments, showing the action one upon contract, without considering the parts struck out, which further emphasize that theory. A cause of action under Section 99-309, *Page 387 supra, is a distinct and separate cause of action from that on a contract. It would ordinarily be, and in this particular instance probably would be, substantially an action for an accounting. But there is nothing in the petition indicating any such theory. It is possible, reading the petition again after the additional briefs filed herein by counsel for the plaintiff, that counsel intended to state a cause of action on a contract, and still rely upon Section 99-309, supra. But if that was true, the two different causes of action should have been stated and numbered separately. 49 C.J. 155-156.
However, this holding does not necessarily dispose of the point that the case should be sent back for a new trial, so as to permit the reformation and amendment of the pleadings, rather than that the case should be dismissed, compelling the plaintiff to bring a new suit upon the theory upon which it now relies. At least the better practice is that when a petition is fatally defective, and an amendment will not permit recovery in any event, the case should be dismissed, even though plaintiff may have the right to sue, in a separate action, upon another cause of action. 4 C.J. 1195, 1196; Mills v. First Nat. Bank, (Tex.Civ.App.) 208 S.W. 698; Bonzer v. Garrett, (Tex.Civ.App.)162 S.W. 934; Rosenwald v. Transp. Co., 84 Or. 15, 164 P. 189; Larson v. Middleton, (Tex.Civ.App.) 19 S.W.2d 120; Thompson v. Taylor, 61 Utah 164, 211 P. 696; Police Jury v. Martin,140 La. 848, 74 S.W. 170; Grego v. Grego, 78 Miss. 443, 28 So. 817. If, on the contrary, the cause of action is stated merely defectively, and the petition can be amended so as to state a perfect cause of action, the case may be sent back for a new trial. 4 C.J. 1195. We are in doubt in the case at bar, but, in view of the fact that a dismissal merely means that plaintiff would have to commence another action, we are inclined to give the plaintiff the benefit of the doubt. There are isolated statements in the petition *Page 388 which may be construed as referring to a cause of action under Section 99-309, supra. We have already referred to paragraph 7 of the petition, which, it is true, is very unsatisfactory. But paragraph 3 of the petition, after referring to the contract above mentioned, contains the statement that the sum of $1307.25 "is the proper apportionment of school moneys and taxes due from defendant to plaintiff pursuant to the establishment of plaintiff district as aforesaid." This allegation may refer to Section 99-309, supra.
The order directing dismissal, heretofore made, will, accordingly, be vacated. In view of the fact that there is no evidence in the case, in any way sustaining any cause of action under Section 99-309, supra, the judgment of the court below will be reversed, and the cause remanded to the trial court, with permission to amend and reform the petition, if the trial court is so advised, and with the right of defendant to answer it, and for further proceedings not inconsistent with this and the former opinion. Costs in this court and in the lower court, to and including the time of the filing of the mandate from this court therein, will be taxed against the plaintiff.
The burden of proof of a cause of action under Section 99-309, supra, will be on the plaintiff, without aid from the contract already mentioned. The section of the statute just mentioned has been construed in the case of School District v. School District,29 Wyo. 80, 210 P. 562, and the further trial herein must be subject to that case. No rule of justness has therein been laid down, but we doubt not that it will not be difficult for counsel in settling this case, or for the trial court, to arrive at the proper result. It is doubtful that we should be warranted in laying down any general rule at this time, without full argument on the point by counsel. We should, perhaps, mention the fact that counsel for plaintiff asserts, that the balance on hand *Page 389 at the time of division was undoubtedly derived and issued from special tax levy, and that hence the fund should be divided according to the assessed valuation of the respective districts — namely, 72 per cent should go to the plaintiff. There is nothing whatever in the record to show this assertion to be true. The source of the money is not shown anywhere. If we may take the income of 1932-1933, shown by the record, as an indication of the source, we should rather think that only a comparatively small portion, if any, of the money was derived from special assessments, and if that is correct, then, as already pointed out in the original opinion, to give the new district 72 per cent of the money would, upon that basis, be wholly unjust.
Order of Dismissal Vacated; Judgment Reversed, and CauseRemanded for New Trial, with Directions.
RINER and KIMBALL, JJ., concur.