Dierks Special School District v. Van Dyke

• Decision Date: 13 February 1922
• Docket Number: 148
• Citation: 237 S.W. 428,152 Ark. 27
• Parties: DIERKS SPECIAL SCHOOL DISTRICT v. VAN DYKE
• Court: Arkansas Supreme Court

237 S.W. 428

152 Ark. 27

DIERKS SPECIAL SCHOOL DISTRICT v. VAN DYKE

No. 148

Supreme Court of Arkansas

February 13, 1922

Appeal for Howard Circuit Court; James S. Steel, Judge; reversed.

STATEMENT OF FACTS.

V. B Van Dyke sued the Dierks Special School District to recover $ 2,000 alleged to be due him for services as architect in preparing the plans and superintending the erection of a school building for said district. The school district denied liability.

The facts, briefly stated, are that on the 4th day of August 1918, the president and secretary of Dierks Special School District in Howard County, Arkansas, and V. B. Van Dyke signed a written contract whereby the former employed the latter in the capacity of architect to prepare and furnish drawings and specifications for a schoolhouse and to have general superintendence of the building operations for 5 per cent. of the cost of the building. It does not appear that the execution of the contract was authorized by the board of directors of said special school district at a regular meeting of the board, or at a call meeting after due notice to all the members. The record merely shows that four of the directors passed a resolution to employ V. B. Van Dyke as architect in the erection of the new school building, and that the four directors who were named were present. Again the minutes of the school board show that there was another meeting of the board on the 4th day of September, 1918, at which the four members who were named were present. At that meeting the resolution shows that the board voted to receive the contract for the services of V. B. Van Dyke as architect in the construction of the new school building and instructed the president and secretary to sign the same. It is not shown that this was at a regular meeting of the board, or that all the members were given notice of the meeting. There are six directors of the special school district. Thus far there is no contradiction in the evidence.

V. B Van Dyke was a witness for himself. According to his testimony, he prepared the plans and specifications for the erection of the new schoolhouse and superintended the building operations with the knowledge of each of the directors until he was discharged by the directors of the school district in August, 1919. Van Dyke denied that in November, 1918, he accepted $ 750 as payment in full for his services as architect for the preparation of plans and the superintendence of the erection of the new schoolhouse for the district. He admitted that the directors paid him that sum of money, but said that it was a payment on account, and that it was not agreed between them that this should be in full payment of his services, and that he should no longer act as architect in the erection of the new school building.

According to the testimony of several of the directors in November 1918, they had an agreement with V. B. Van Dyke whereby he agreed to accept $ 750 as payment in full of his services as architect under a contract which he claimed to have with Dierks Special School District, and that he was to act no longer in the capacity of such architect. A warrant for $ 750 was delivered to Van Dyke, and he received and collected the same. The directors did not recollect whether all the members of the school board were present when this was done, but state that no record of the proceedings was kept by the school board. Van Dyke was discharged by a written resolution at a meeting of the school board held on August 20, 1919, for the purpose of investigating the trouble between V. B. Van Dyke and J. W. Epperson, who was in charge of the construction of the school building for the school board. It was shown that Van Dyke had interfered with Epperson in the discharge of his duties, and had threatened to shoot Epperson if he did not leave the building. Van Dyke also failed to make certain changes in the plans of the schoolhouse which the board had directed him to make.

Van Dyke on his part denied that he had interfered with Epperson as superintendent of construction of the building, or that he had refused to make the changes in the plans of the building requested by the board. He said that he had merely delayed making the changes until it was necessary to work upon that part of the building where the changes were to be made. He further stated that he could make the changes within thirty minutes. Other facts will be stated or referred to in the opinion.

The jury returned a verdict in favor of the plaintiff, Van Dyke for $ 870, and from the judgment rendered the defendant school district has duly prosecuted an appeal to this court.

Judgment reversed and cause remanded.

Abe Collins, for appellant.

1. The president and secretary of a school board can not execute a contract which would bind the district unless they are authorized so to do at a regular meeting of the school board or at a special or called meeting at which all members were present and participating, or of which meeting they each had due notice of the time, place and purpose of the meeting. 52 Ark. 511; 54 Id. 58; 55 Id. 473; 64 Id. 489; 67 Id. 236; 73 Id. 194; 84 Id. 550; 90 Id. 335; 105 Id. 106; 109 Id. 125; 110 Id. 262; 58 L. R. A. (N. S.) 1047, case note.

The burden was on the appellee to show that the execution of the contract was properly authorized. 86 Ark. 687; 62 Id. 33; 21 Kan. 389; 94 Ark. 584-586.

2. There was no issue of ratification raised by the complaint nor joined in the pleadings. However, the burden of proof was on the appellee on that issue, if raised. 67 Ark. 236; 81 Ark. 843; 110 Id. 262; 82 Id. 533; 95 Id. 26.

3. It was error to exclude evidence to prove either before the contract was signed or immediately thereafter, appellee agreed to step down and out in the event his services became unsatisfactory, etc. This amounted to an additional agreement. 112 Ark. 223; 118 S.W. 409; 82 Ark. 547.

4. The contract, if binding at all, was entire, calling for completion of the whole work, and providing for a fixed compensation for the completion of the whole. The jury should have been instructed that, if the appellee gave reasonable grounds therefor, and was discharged by the board without having completed all of the work, he was not entitled to recover. 5 C. J. 261; 2 R. C. L. 402; 102 Ark. 152; 112 Id. 608.

5. If discharged without reasonable cause, he could recover only the reasonable value of services actually rendered. 5 C. J. 259, § 8, and note 38; 2 Cal. Ap., 220; 83 P. 282.

W. P. Feazel and H. P. Epperson, for appellee.

1. If the board knew that appellee was acting or claiming to act as architect by virtue of his contract, and permitted him to do so, and accepted the benefit of his plans, specifications and work, it thereby ratified the contract and is bound by it. 67 Ark. 236; 109 Id. 546; 86 Id. 309; 78 Id.. 483; 142 Id. 560; 129 Id. 214; 126 Id. 622; 110 Id. 262; 103 Id. 587.

2. The evidence as to the alleged oral agreement to "step down and out", etc., was properly excluded because, first, it is not shown that it was made at a regular meeting of the board at which all members attended or of which they had notice; hence, not binding and no mutuality. 96 Ark. 184; 78 Id. 276. Second, it tended to contradict, add to, or vary, the signed, written contract. 5 Ark. 65; 102 Id. 575.

3. This court's decisions do not support the contention of appellant with reference to the entirety of the contract, and that appellee could not, because of his own conduct, recover for partial performance. 115 Ark. 437; 232 S.W. 534.

OPINION

HART, J. (after stating the facts).

It is settled in this State that no contract can be made by a school board except at a board meeting, and that no meeting can be held unless all the directors are present, or the absent member or members have been duly notified. It has been further held that notice of a regular meeting is, however, unnecessary where regular meetings are held at stated times fixed by the board. School District v. Bennett, 52 Ark. 511, 13 S.W. 132; Rice v. School District No. 20, 109 Ark. 125, 159 S.W. 29; and School District No. 56 v. Jackson, 110 Ark. 262, 161 S.W. 153, and cases cited. This is in application of the general rule that where persons are authorized by statute to perform a public service as a board or as an organized body which requires deliberation, they must be convened in a body that they may have the advice of every member, although they may not all be of the same opinion as to the matter in hand.

While there is in the record in the present case a contract signed by Van Dyke and the president and secretary...