Bourne v. State, ex rel. Taylor.

ject which concerns the education of the pupil or the discipline of the school, therefore the respondents had no authority to adopt or enforce the same. In this view we are unable to concur. It will be noticed that this statute expressly confers upon the trustees the power to classify and grade the scholars. To do this successfully it is important for them to know the progress made by each pupil. There is probably no better manner of determining the proficiency of the students in their studies than by a correct system of marking by the teachers on their daily recitations. This, when conscientiously done, materially aids in the proper classification of the pupils. Some system of marking the standing and proficiency of the pupils is generally adopted by all graded schools. It tends to stimulate the pupils to higher scholarship. That the respondents had the power to require the teacher to keep a record showing the standing and proficiency of each scholar in the branches taught, as well as his attendance and punctuality, cannot be doubted, and we think a rule is not unreasonable or harsh which makes it the duty of the teacher to send each month by each pupil a written report of his standing to his parent or guardian for examination, and to require that the same be returned to the teacher with the signature of the parent or guardian. By this method the parent is not only informed of the standing of his child, but the regularity of his attendance. The relator has frequently recognized the reasonableness of this rule by repeatedly signing and returning to the teacher the report cards. No valid excuse has been offered for not signing the last one sent him. The objection made at the time for so doing was that his son's standing was not so good as it had been during the months preceding. His excuse did not justify him in refusing to comply with a rule prescribed by the board.

An examination of authorities cited in relator's brief will show that they do not sustain the position for which he contends.

Bourne v. State, ex rel. Taylor.

State v. Board of Education, 63 Wis., 234, was a case where a pupil was suspended for refusing to comply with a regulation of the school, to the effect that each scholar, when returning to school after recess, should bring a stick of wood for the fire. It was decided that the regulation was invalid and that a pupil cannot be suspended for failing to comply therewith.

In Holman v. School Trustees, 43 N. W. Rep. [Mich.], 997, it was held that a rule adopted by the school board which authorized the suspension of a pupil from school for failure to pay for or replace a window-pane broken by him, was without authority and void. To the same effect is Perkins v. School District, 9 N. W. Rep. [Ia.], 356.

In State v. School District, 31 Neb., 552, it was held that while the school trustees of a high school have the power to prescribe what branches shall be taught and what text-book shall be used, the parent has the right to decide what particular branch of studies of those prescribed to be taught shall be pursued by his child, and, if the selection is reasonable, it must be respected by the board.

It is obvious that none of these decisions meet the question now before us. It is clear that the relator is not entitled to the relief demanded. The judgment is reversed and the action

THE other judges concur.

DISMISSED.

Oskamp v. Gadsden.

CLEMENS OSKAMP ET AL. V. JAMES GADSDEN.

[FILED JUNE 11, 1892.]

Evidence: CONTRACT BY TELEPHONE: MESSAGE REPEATED BY OPERATOR. Defendant called at the public telephone station at Schuyler and asked the operator to request plaintiffs to step to the telephone in their place of business in Omaha as he desired to converse with them. H., one of the plaintiffs, answered the call, but owing to the conditions of the atmosphere the parties were unable to communicate directly with each other. The telephone operator at Fremont, an intermediate station, proposed to and did transmit defendant's message to plaintiff offering to sell them a quantity of hay, and he also repeated to the defendant their answer accepting the proposition. In an action for a breach of the contract it was held, that the conversation was admissible in evidence, and that it was competent for the defendant to state the contents of plaintiffs' answer to his message as repeated by the operator at Fremont at the time it came over the wire.

ERROR to the district court for Douglas county. Tried below before CLARKSON, J.

Isaac Adams, for plaintiffs in error:

Gadsden's testimony is irrelevant, and hearsay or derivative. (Stevens, Dig. of Ev., art. 62.) To hold Gadsden's testimony competent is contrary to public policy, for the following reasons:

(a.) Since it was repetition of the language of another, that language might not have been correctly repeated, either through original misapprehension, subsequent failure of memory, or willful misrepresentation.

(b.) The statements testified to were made by a person who was neither under the obligations of an oath, nor subject to cross-examination respecting accuracy or veracity.

(c.) It would be to introduce a new and distinct excep

Oskamp v. Gadsden.

tion to the doctrine excluding hearsay evidence from judicial investigations, and one based upon a different foundation from the established exceptions to this doctrine. The operator at Fremont was not the plaintiff's agent. The principle to be applied here is the same as in case of a message transmitted by telegraph, where the original, as against the sender, and the one by which the sender is bound, is the message as received. (Ayer v. W. U. Tel. Co., 79 Me., 493; Tel. Co. v. Shotter, 71 Ga., 760; Durkee v. R. Co., 29 Vt., 137; Saveland v. Green, 40 Wis., 431; Morgan v. People, 59 Ill., 58; Howley v. Whipple, 48 N. H., 488.) The ruling now complained of goes farther than Sullivan v. Kuykendall, 82 Ky., 483, in that it permits testimony of what Gadsden said to the operator when Gadsden was not in a situation to know whether the operator repeated his message as given or not.

Richmond & Legge, contra:

The testimony of Gadsden is the best evidence, and is admissible on the grounds of agency. There are stronger reasons for holding the operator at Fremont the agent of both parties than in the case of Sullivan v. Kuykendall, 82 Ky., 483, for in that case the operator was at the station at one end of the line, and in the case at bar the operator repeating the message was at an intermediate point and acted as interpreter for both parties. Viewing the operator at Fremont as the agent of defendant Gadsden, it is clear that she was his agent to repeat to plaintiff only the message which he delivered to her, and that he would not be bound by any message which she, as the employe of the telephone company, saw fit to deliver. (Gray, Telegraphs, sec. 105.)

NORVAL, J.

Plaintiffs in error brought suit in the court below to recover damages for the alleged breach of contract by the de

Oskamp v. Gadsden.

fendant in his refusing to deliver a quantity of hay claimed to have been purchased by them from him. The jury returned a verdict for defendant, upon which judgment was entered.

In 1888 plaintiffs were engaged in the city of Omaha in the flour, feed, grain, and hay business. Defendant resided at Schuyler, and had about 150 tons of baled hay which he desired to sell. Prior to the middle of April of that year plaintiffs and defendant had some correspondence about the purchase and sale of this hay, but no contract was entered into at that time. On May 1, 1888, defendant sent the following letter to plaintiffs:

"Oskamp, Haines & Co., Omaha, Neb.-GENTLEMEN: What is your price for pressed hay now? Mine is still for sale if I can get as much as others are getting. I would rather close out the entire amount at once if I can find a customer, and will give the use of my barn till July 14th if buyer wants to speculate. There is scarcely any hay left here. Some on the prairie will not be hauled this season on account of bottoms being covered with water.

"Yours truly,

JAMES GADSDEN."

In answer to the above plaintiffs wrote defendant as follows:

"OMAHA, May 2, 1888.

Mr. James Gadsden, Schuyler, Neb.-DEAR SIR: Answering yours of the 1st. The market seems to be glutted now with hay. Have bought some at $7.75 on track since we bought that of yours. If you want to sell now and mean business, we will give you $8.25 per ton on track here, if it is all like the cars we had, but we do not leave this offer open longer than Saturday, but we prefer acceptance by wire, as we are figuring upon 800 tons at a trifle. better price. Sample car now coming, and if we get that all, have got to crowd the market here. Have about 140 tons bought now, and would not want yours at any price with that large lot.