Hall v. School Dist. No. 10

• Decision Date: 10 January 1887
• Citation: 24 Mo.App. 213
• Parties: GEORGE W. HALL, Respondent, v. SCHOOL DISTRICT NUMBER TEN, Appellant.
• Court: Kansas Court of Appeals

24 Mo.App. 213

GEORGE W. HALL, Respondent, v. SCHOOL DISTRICT NUMBER TEN, Appellant.

Court of Appeals of Missouri, Kansas City.

January 10, 1887

APPEAL from Schuyler Circuit Court, HON. ANDREW ELLISON, Judge.

Reversed and statement dismissea.

Statement of case by the court.

This was an action, begun before a justice of the peace, for the recovery of sixty dollars, the balance alleged to be due on a contract made by the defendant with the plaintiff employing him as a teacher for the period of four months.

The plaintiff had judgment before the justice.

The defendant appealed to the circuit court.

In the latter court the case was submitted to the court, without the intervention of a jury, on the following agreed statement of facts:

" It is agreed, between the parties to this cause, by their attorneys, that plaintiff was employed by defendant, at a special meeting of its directors, for a term of four months, as claimed by written contract on file with the papers in this case, and by order of the board, that he taught two months and fifteen days, and was paid in full for the two months' service. That the school house burned accidentally, in January, 1885, without the fault of the defendant or its directors, and that plaintiff has made no monthly report for either of the last two months of term, nor term report, and that on account of the failure of defendant to provide a house after the burning, plaintiff could not complete the term, and that plaintiff has ever since held himself in readiness to take charge and complete the term."

The court declared the law to be as follows, for the plaintiff:

" 1. It appearing from the evidence that plaintiff has been paid and judgment rendered for the full time he actually taught; then no objection can be made for the failure to make report for the period after the burning of the school house.

2. It being admitted plaintiff was legally employed to teach for four months upon written contract, in which no provision was made against accident or destruction of the building, and it being admitted plaintiff was at all times ready and willing to complete the school, and no room was furnished him, the finding must be for plaintiff for the full term of four months less the amount paid him."

The court refused to give, among others, the following declaration of law asked by the defendant:

" The court declares the law to be that unless it appears from the evidence, plaintiff had filed with the district clerk a monthly report for the time taught by him for which he had not been paid prior to the institution of this suit; then as to the amount claimed by him on account of the one-half month's seryices, the finding must be for defendant."

The court found in favor of plaintiff for the whole amount sued for, and rendered judgment accordingly. The defendant has appealed to this court.

SHELTON & DYSART, for the appellant.

I. The evidence shows neither a monthly nor a term report made by plaintiff for the two months on account of which this suit is brought, prior to the institution of this suit. Hence the action must fail. Rev. Stat., sects. 7071, 7079.

II. The element of mutuality is essential to all contracts hence, if an unforeseen contingency, such as sickness or death, would excuse performance on part of plaintiff, so also must the contingency arising in this case excuse defendant from further performance. 2 Sutherland on Damages, 457; Jennings v. Lyons, 39 Wis. 553; Wolfe v Homes, 20 N.Y. 197; Ryan v. Dayton, 25 Conn 188; Fuller v. Brown, 25 Neb. 440; Knight v. Bean, 22 Me. 531; Laken v. Pollard, 43 Me. 463; Green v. Gilbert, 21 Wis. 395; Harrington v. Iron Works, 119 Mass. 82.

III. Plaintiff, in any event, can only recover for time taught, and then only when his reports are in. Cleary v. Lobier, 120 Mass. 210; Hays v. Baptist Church, 3 West Rep. 829.

IV. The language of the statutes (Rev. Stat., sects. 7071, 7079) is unqualified, that no warrants can be drawn until the reports therein provided for are first filed, and no exceptions are made.

V. If recovery can be had in this case at all, it can only be had for the time actually taught. The instructions asked by defendant declared the law of the case, and should have been given.

C. C. FOGLE, for the respondent.

I. Defendant's appeal must be dismissed, because he failed to file an affidavit stating that he believes that he is aggrieved by the judgment, etc. Rev. Stat., sect. 3712. Also it should be dismissed, because he failed to file an affidavit and bond, during the term of the court at which judgment was rendered. State ex rel., etc., v. Keuchler, 83 Mo. 193; Brown v. Railroad, 83 Mo. 478. Also it should be dismissed, because, according to defendant's abstract of record the case was never submitted to the court, until the seventh of May, 1886, and no motion for new trial or in arrest of judgment, or affidavit for appeal were filed any time in 1886.

II. The instructions given by the court declared the law in the case, and the finding was for the right party. When a party by his contract creates a duty or charge upon himself, he is bound to make it good, notwithstanding any accident by inevitable necessity, because he might have provided against it by his contract. Harrison v. Railroad, 74 Mo. 371; Davis v. Smith, 15 Mo. 325; Gibson v. Perry, 29 Mo. 245; Dewey v. School Dist., 43 Mich. 480; Adams v. Nicholas, 19 Pick. (Mass.) 275; 2 Parsons on Cont., 184; Chitty on Cont., 274; 3 Kent's Comm., 467; Hutch. Carriers, sect. 317; Atkins v. Ritchie, 10 East. 530; Deming v. Railroad, 48 N.H. 455. Even the act of God will be no defence to suit for breach of contract, if terms of it could have been substantially carried into effect by defendant. 2 Parsons Cont., 806.

III. Plaintiff could not make a monthly report, because he did not teach for the last two months; he could not make a term report because he did not teach the term out. The law requires no impossibilities or foolish things. In the case of Arnold v. School Dist. (78 Mo. 229), plaintiff tendered his services and monthly reports during the whole term of his contract, but made no term report. The court held that the single question was, whether the directors had the lawful right to terminate the plaintiff's contract, etc.

IV. The law concerning the subject matter of the contract enters into and becomes a part of it. Defendant contracted with plaintiff to furnish him a school house and to keep it in good condition and repair. Hence defendant was bound to furnish a school house, or be liable to plaintiff for not doing so. Rev. Stat., sect. 7044. See also authorities cited under paragraph II.

HALL J.

I.

The plaintiff's counsel make the point that the appeal should be dismissed. The point is based upon the statement contained in the defendant's abstract of the record that this case was submitted to the circuit court on the agreed statement of facts on May 7, 1886.

The date is evidently a clerical error, and the error has been corrected in the copies of the abstract on file in this court, the year having been changed from 1886 to 1885. But the abstract of the record further on corrects itself, for further on it states that the court, under the instructions and the evidence, found the issues and rendered judgment for the plaintiff on November 3, 1885. The appeal will not be dismissed.

II.

Was the burning of the school house, caused by inevitable accident, a good defence for the defendant as to the portion of the term subsequent thereto?

The rule is, " that when a party by his own contract creates a duty or charge upon himself, he is bound to make it good, notwithstanding any accident by inevitable necessity, because he might have provided against it by his contract." Paradine v. Jane, Aleyn, 26; Harrison v. Railroad, 74 Mo. 371.

The principle upon which the rule is based would seem to be, from the very language of the rule, the question, what was the real intention of the parties? " because," as stated by the rule, if the party did not so intend, " he might have provided against it by his contract." And it has been sad that. " The great principle upon which all the adjudged cases" (upon this subject) " in all the courts is based, is the question, what was the real intention of the parties? The law gives a reasonable construction to all contracts." Wolfe v. Homes, 20 N.Y. 200; McMillan v. Vanderlip, 12 Johns. 165.

That the rule on the subject is simply the enforcement of the intention of the parties to the contract is found from a study of the adjudicated cases and text books treating of this subject. Thus, where the lessee contracts unconditionally to pay rent for a house, " though it be burnt down, yet he is liable for the whole rent." Lord R., 1477; Davis' Adm'r v. Smith & Bradley, 15 Mo. 469. But it is conceded that, in the case of a lease of furnished rooms, upon their proving untenantable, the lessee might abandon them. Davis' Adm'r v. Smith & Bradley, supra. The reason is that in the first contract the implication is that it is the land which the lessee takes, and of which he must bear the ourdens as well as the benefits, while in the second, he takes only the rooms, and when they are untenantable, possesses nothing which is of any value to him. 1 Wharton on Contracts, sect. 318.

If one undertakes to deliver a certain quantity of potatoes a failure of crops will not excuse a failure to comply with the contract; but a contract to deliver " a certain quantity out of a specific crop of potatoes is pro tanto avoided by a failure of the crop, so that the specified quantity is not produced." 1 Wharton on Cont., sects. 314 and 315.

The reason is that in the first case the contract was unconditional, while in the second " there was an implied term that each...