Ashby v. School Tp. of Liberty, in Lucas County, 49748

Decision Date20 October 1959
Docket NumberNo. 49748,49748
Citation98 N.W.2d 848,250 Iowa 1201
PartiesMyrle M. ASHBY, Appellee, v. SCHOOL TOWNSHIP OF LIBERTY, in LUCAS COUNTY, Iowa, et al., Appellants.
CourtIowa Supreme Court

Stuart & Stuart, Chariton, for appellants.

A. V. Hass, Chariton, for appellee.

GARFIELD, Justice.

Plaintiff entered into a written contract with defendant school township on April 5, 1957, to teach a subdistrict school nine months commencing September 2, 1957. She taught until October 3 when the board of directors closed the school. Plaintiff remained willing and able to continue to teach. On March 7, 1958, she brought this law action to recover the salary provided by the contract for the school year less the amount paid her.

Subparagraph g of the contract provides 'That in case the enrollment of said school becomes less than six this contract becomes null and void.' Defendant contends it closed the school because the enrollment became less than six and the contract therefore became null and void under this provision. Plaintiff claims the quoted provision is illegal and void because, it is said, it violates section 279.13, Code 1954, I.C.A. Upon trial to the court without a jury it upheld plaintiff's claim and rendered judgment for the amount sued for. Defendant has appealed.

I. Plaintiff first asks an affirmance on the asserted ground defendant did not plead as a defense its claim that the enrollment was less than six and the contract was therefore void because of subparagraph g, quoted above. We think the issue was before the trial court, was there considered and decided and the judgment should not be affirmed on this ground.

Plaintiff's petition contains a copy of the contract, alleges the school was closed October 3, 1957, and she has been damaged in the sum of $2,080 by defendants' refusal to honor the terms of the contract. Defendants' answer states that because of lack of sufficient pupils in the school the directors were compelled to close it, plaintiff has been paid the proper amount under her contract for the time she taught and defendants were not able to keep the school open under Iowa laws; 'plaintiff has been paid the amount due under her contract * * * and is not entitled to further compensation under her contract and Iowa laws.'

Plaintiff's reply alleges that section 279.13, Code 1954, I.C.A., prohibits a termination of a teacher's contract except under certain specified conditions, none of which exists here, 'and termination of said contract by defendants under its provisions or otherwise, contrary to the definite term provided for by it and said statutes was illegal and void.' Also that having permitted plaintiff to teach six weeks defendants waived any right to terminate the contract' as alleged in their answer or otherwise.' (Emphasis added.) Plaintiff's reply further states that the contract specifically enumerates the instances in which plaintiff may be deprived of her compensation, they are limited to lack of certificate and dismissal, her certificate was in force at all times and she was not legally dismissed, she is therefore entitled to her compensation as provided in the contract.

It is perhaps of some significance that plaintiff's petition contains a second, alternative count in which she alleges three other residents of the township maliciously conspired with the school directors to interfere with plaintiff's contract rights by removing their children temporarily from the subdistrict until the directors closed the school and such temporary removal was with the purpose of eliminating plaintiff as a teacher and depriving her of the benefits of her contract.

There is no doubt the trial court understood defendant was relying upon subparagraph g of the contract as its authority for terminating the contract because school enrollment fell below six. In orally announcing his decision immediately following the brief trial he quoted this contract provision and said, 'That is the question being raised by the board.' Plaintiff's counsel expressed no disagreement with this announcement. The court went on to hold the contract could be terminated only for the causes enumerated in section 279.13 and 'the fact the enrollment fell below six did not invalidate this contract, this provision in it to the contrary notwithstanding.' The record contains further indication, details of which need not be stated, that the trial court understood the defense was bottomed upon subparagraph g of the contract.

It may be conceded defendants' answer does not clearly state its contention that the contract was terminated under subparagraph g on the ground the enrollment became less than six. (Defendants' present counsel did not enter the case until the appeal was taken.) The answer does, however, allege the school was closed because of lack of sufficient pupils and plaintiff has been paid the amount due under her contract. Subparagraph g of the contract, made part of the petition, furnished the only possible authority for closing the school because of lack of sufficient pupils enrolled at the time of closing.

Regardless of any deficiency in the answer, plaintiff's reply plainly tendered the issue on which the case was decided--that the contract could be terminated only on a ground specified in section 279.13, none of which exists here, 'and termination of said contract by defendants under its provisions * * * was illegal and void.' The reply also states defendant waived any right to terminate the contract 'as alleged in their answer or otherwise.' Further, that the contract limits the causes for which plaintiff may be deprived of her compensation to lack of a teacher's certificate and dismissal and she is therefore entitled to be paid.

Quite in point is Cuthbertson v. Harry C. Harter Post No. 839, 245 Iowa 922, 928-929, 65 N.W.2d 83, 87, 88, where plaintiff claimed on appeal defendant did not properly plead the statute of limitations and that it was its duty so to do under rule 101, 58 I.C.A. Rules of Civil Procedure, which this plaintiff invokes here. The answer did allege 'any such claimed contract or mechanic's lien is invalid, without force or effect, and void and the plaintiff is barred from recovery therefor.' Of this allegation we said, 'It will be observed no reference was made to the fact the action was barred by reason of a statute of limitation.' Cuthertson's reply denied his cause of action was barred. Our decision was 'We might hold this issue was not properly pleaded but inasmuch as the plaintiff sought to meet it we are disposed to hold it was made an issue by his action.'

This quotation is repeated and the holding in the Cuthbertson case approved in Thorson v. Board of Supervisors, 249 Iowa 1088, 1098-1099, 90 N.W.2d 730, 736, where there was a failure to plead an affirmative defense as required by a statute. See also In re Adoption of Karns. 236 Iowa 932, 939, 20 N.W.2d 474, 478.

Defendant's answer was not attacked by motion for more specific statement, demurrer or otherwise. Until after the appeal was taken plaintiff made no claim the issue the trial court said was raised and on which he decided the case was not properly before it. Under these circumstances defendant's answer will be liberally construed in order to effectuate justice between the parties. The answer will be accorded the implications necessarily inferred, regardless of technical objections or informalities. It is now too late for plaintiff to question the sufficiency of the pleadings. Wilson v. Corbin, 241 Iowa 593, 605, 41 N.W.2d 702, 709, and citations; Dawson v. Laufersweiler, 241 Iowa 850, 857, 43 N.W.2d 726, 730; Carlson v. Bankers Trust Co., 242 Iowa 1207, 1215, 50 N.W.2d 1, 6.

In Wilson v. Corbin, supra, plaintiff's petition in a negligence action failed to allege his freedom from contributory negligence but did state 'he has at all times since his injury followed such instruction as he received from his doctors to the best of his knowledge and ability.' [241 Iowa 593, 41 N.W.2d 708.] Until a motion for directed verdict was made the petition was not attacked for failure to allege freedom from contributory negligence and the parties proceeded as if the issue were properly raised. We held: 'Where parties proceed without objection to try an issue, even though not presented by the pleadings, it amounts to consent to try such issue and it is then rightfully in the case.' (Citations.) At pages 605-606 of 241 Iowa, at page 709 of 41 N.W.2d. The holding is fully applicable here.

Other Iowa decisions to the effect that issues voluntarily tried, although not technically within the scope of the pleadings, are rightfully in the case include Thorson v. Board of Supervisors, supra, 249 Iowa 1088, 1098-1099, 90 N.W.2d 730, 736, and citations; Weidert v. Monahan Post Legionnaire Club, 243 Iowa 643, 248, 51 N.W.2d 400, 402; Kelly v. Emary, 242 Iowa 683, 691, 45 N.W.2d 866, 871; Baehr-Shive Realty Co. v. Stoner-McCray System, 221 Iowa 1186, 268 N.W. 53; Des Moines Asphalt Paving Co. v. Lincoln Place Co., 201 Iowa 502, 207 N.W. 563.

II. Plaintiff next argues for an affirmance because, it is said, there is no evidence the school enrollment became less than six. Although the record is not as clear as it might be, we think it sufficient upon this point.

The county superintendent of schools testified, 'In the fall of 1957 the matter of whether this school should continue or be closed came up.

'Q. How did that arise? A. When school opened there was only four resident pupils there. * * * We knew there were only four pupils in school due to the report filed ten days after it opened.'

Although the foregoing testimony remained in the record a stipulation later dictated by plaintiff's attorney stated that when plaintiff first attended the school in the fall of 1957 for teaching purposes there were four pupils in attendance and this existed until the school was closed by action of the directors on October 3.

It will be noticed the...

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