GEORGE A. DICKEY vs. TRUSTEES OF THE PUTNAM FREE SCHOOL.

BRALEY, J. In execution of the trust created by the will of Oliver Putnam, and under the enabling statute of incorporation, the private school for which he provided had been successfully founded and maintained. St. 1838, c. 85. At some period this school and the high school of the city of Newburyport had been unitedly administered, yet the arrangement for a joint administration does not appear to have been perfected until the agreement and plan of co-operation were adopted and made permanent in 1885. If the educational functions of the united schools were substantially similar, the foundations upon which they rested were legally distinct. The high school maintained by the city was a public institution supported by taxation, and subject to the exclusive control of the school committee, while the Putnam Free School was a private institution maintained by the income derived from the fund, and subject only to the control and supervision of the trustees under the act of incorporation. They could not delegate to the school committee the discharge of their fiduciary duties, nor could the committee

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confer upon them any of the statutory powers in the selection of teachers, or the management of the high school with which they were clothed. R. L. c. 42, §§ 25-38. Merrick v. Amherst, 12 Allen 500, 508. Jenkins v. Andover, 103 Mass. 94. Under the coalition, while both schools might be lawfully housed in the same building, and with the sanction of the committee instructed by the same teachers, yet when in operation they were distinct educational organizations, and neither became merged in the other. By the terms of the agreement the city paid a fixed annual rental for the use of the school building, which the defendants were to keep in repair, and also were to provide fuel and pay the janitor, while each body, acting separately in the appointment of teachers, approved the selection made by the other, so that the principal and his assistants consequently became the choice of both of the governing bodies. A possible question concerning the expenditure of the public revenue for the support of a private institution was further avoided by the provision, that with the exception of the principal of whose salary, if he was satisfactory to them, the trustees were to contribute all over a certain sum, but not to exceed a maximum amount, the salary of the teachers primarily appointed by the trustees was to be paid by them. In practical operation the arrangement seems not only to have been feasible, but to have worked satisfactorily, until the disagreement over the reappointment of the plaintiff as principal for the last school year of his service. After he had been duly re-elected by the school committee, upon receiving notice of their choice, the trustees voted "neither to approve nor disapprove" of his election, and as the committee did not recede, the plaintiff, having accepted, served during the year. But so far as his claim for salary rests on an express contract with the defendants, he cannot prevail. If the trustees, when acting as a corporate board, could ratify the action of the committee, and thus bind the defendant to the performance of the contract, the answer is, that their vote fails affirmatively to express approval, and there was no ratifying act The plaintiff's argument, that ratification follows from their subsequent conduct as individuals in remaining silent with full knowledge of the circumstances, is groundless, as shortly after, the trustees notified the committee that under the first clause of

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the agreement "they declined to pay any portion of the principal's salary for the ensuing year." The express contract made with him by the committee never having been the contract of the defendants, the ruling that he could not recover on the first count was correct.

It was open, under the second count, however, for the jury to find, that the plaintiff had been originally elected at a salary of $2,000, which he understood had not been changed during the succeeding years, and although in the annual notice received from the committee, it was stated to be $1,600, this sum represented only the amount paid by the city, while the difference, until the last year, had been regularly paid to him by the defendant. Notwithstanding this, the contention is made that upon receiving the last notice he should have understood that his position for the year had become that of principal of the high school only, as the trustees were powerless either to dismiss or retain him, and, if he chose to remain, any services rendered in the instruction of private pupils was purely gratuitous. But it nowhere appears that he had any knowledge of the contents of the joint agreement, or ever received from the defendant any notification of their official action. In a general way, from the comment in the public press, his attention may have been called to some of the particulars of the meeting of the school committee, at which the defendant was represented, but this information also included the explicit statement, that the city solicitor, who was in attendance, advised that under the vote of the trustees his election as principal must be considered valid. While copies of the subsequent votes by which the defendant declined to pay any part of the salary were promptly sent to the committee, yet the plaintiff, who testified that he never had been aware of any dissatisfaction on the part of the trustees as a body, or possessed any direct information of their official action, remained unnotified. The general course of dealing previously followed, and his lack of any authoritative knowledge, due to the inaction of the defendant, would warrant a finding, that when the plaintiff began the term, he had reasonable cause to believe, that under a contract which in form of expression did not differ from those of former years, even if later it turned out to be binding only on the city, he was serving as the principal of both schools. After

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the term opened the schools were conducted in the same manner as before. Pupils belonging exclusively to the defendants' school were in attendance, and received the usual instruction, and some of the trustees, including the secretary, were in attendance from time to time. At the close of the school year the plaintiff as principal, in the presence at least of the secretary, signed and presented the diplomas of the graduates, which also bore the signatures of the trustees. Nor is the evidentiary force of this testimony destroyed either by the fact that the bills for services, although sent each month, remained unpaid, or that in response to demands made upon him for payment, the letter of the secretary to him while offering to present his bill to the trustees, also for the first time called attention to the vote "not to pay any portion of the salary of the principal for the ensuing year." It still could be found from plenary evidence that, with, knowledge of all the circumstances, the defendant accepted the benefit of his services, which they well knew were not intended to be gratuitous, and without which its school could not have been conducted. To say that having done so, it ought not to be held to pay for them, when by an appropriate notice the plaintiff could have been decisively informed that he must be content with what the city paid, or else resign, is to permit the defendants not only to retain the value of his unrewarded labor, which it did not refuse to accept, but indirectly to oblige the taxpayers of the municipality to contribute to the support of a private institution of learning.

The case, therefore, was properly submitted to the jury, and the verdict in favor of the plaintiff must stand. Van Deusen v. Blum, 18 Pick. 229. Zerrahn y. Ditson, 117 Mass. 553. Day v. Caton, 119 Mass. 513, 515. Worthington v. Plymouth County Railroad, 168 Mass. 474. Spencer v. Spencer, 181 Mass. 471.

Judgment for the plaintiff on the verdict.