Luse v. Waco Community School Dist. of Henry County

• Decision Date: 05 April 1966
• Docket Number: No. 51934,51934
• Citation: 258 Iowa 1087,141 N.W.2d 607
• Parties: Carl E. LUSE, Appellee, v. WACO COMMUNITY SCHOOL DISTRICT OF HENRY COUNTY, Iowa, the Board of Directors of Waco Community School District of Henry County, Iowa, George Brooks, Raymond King, Herbert Hult, Vernon Fletcher, and Wilbur Graber, as individuals, and as members of the Board of Directors of Waco Community School District of Henry County, Iowa, Appellants.
• Court: Iowa Supreme Court

Page 607

141 N.W.2d 607

258 Iowa 1087

Carl E. LUSE, Appellee, v. WACO COMMUNITY SCHOOL DISTRICT OF HENRY COUNTY, Iowa, the Board of Directors of Waco Community School District of Henry County, Iowa, George Brooks, Raymond King, Herbert Hult, Vernon Fletcher, and Wilbur Graber, as individuals, and as members of the Board of Directors of Waco Community School District of Henry County, Iowa, Appellants.

No. 51934.

Supreme Court of Iowa.

April 5, 1966.

Alanson K. Elgar, and Eugene C. McCoid, Mt. Pleasant, and Dailey, Dailey, & Peterson, Burlington, for appellants.

Morrison, Morrison & Morrison, Washington, for appellee.

STUART, Justice.

Plaintiff brought this action to recover the salary alleged due him under a contract whereby he was employed as superintendent of schools of defendant district. Defendants are the school district and its directors who claim the contract was terminated by mutual agreement when the board accepted plaintiff's oral resignation. The trial court found defendants failed to prove the oral resignation and awarded plaintiff judgment in the amount of $11,600. This is a law action and no authorities are needed to support the proposition that the findings of fact made by the trial court are binding on us if supported by substantial evidence. R.C.P. 344(f)(1). We do not weigh the evidence.

Plaintiff was employed as school superintendent for defendant district from July 1, 1962 to June 30, 1963. Plaintiff claims the contract was extended to June 30, 1964 on April 12, 1963. On May 20th, 1963 the Board of the Waco Community School District met at a special meeting to canvas the returns of an election held to fill a vacancy on the board. A tie vote was resolved by lot in accordance with the Iowa Code § 50.44 and § 277.21. The board then selected a new president, vice-president and secretary.

Plaintiff testified: 'Chairman asked for business to come before the board and Mr. Hult presented as new business remarks that Dr. Herrmann had not been a legal member of the board of education since some time in March, 1962; he thought the board should get legal counsel to declare some of Dr. Herrmann's activities void and specifically named three contracts--that of the Blackhawk Conference selected by the board; the high school principal's contract, Mr. John Alderson, and the superintendent's contract, Mr. Carl Luse. The board did not take any action with regard to the statement by Mr. Hult because I think that about this time Dr. Herrmann submitted a new resignation which he had prepared prior to the meeting of the board. The board did not take any action on Dr. Herrmann's resignation at that time. As to what next transpired I am not sure whether anything else was said before I spoke up or not. I know I told them that I had served too many masters in the past year; everyone knew to what I was alluding; this was making the ninth board member in less than one year of legal reorganization. I could not speak for Mr. Alderson but if they wanted my contract they could surely get it. As to other statements which I made to the board at that time, there were other questions asked and conversation carried on; as a result of which I told them that I would word a statement that night and present it to the president of the board the following day. * * * As to other statements, to the board the night of May 20th, I was questioned by Mr. Hult and those questions I tried to answer. He asked first when they could get my contract. I told them 'whenever they wanted it'. He then asked me 'is that a resignation?' I said 'is that what you would like, sir?' and he asked if 'I would submit a resignation?' and I told them that I would word one after I went home that night and I would give it to the president the next day. That is the only promise I made to the board that night. I left the meeting shortlyafter that. Although there was conversation carried on as I was leaving the board room, I believe by all members present with the possible exclusion of the past president. The last statement I heard, concerning the promised piece of paper was made by James Troutman who said, 'I hope he does not make it effective prior to June 30th''.

Plaintiff's exhibit 3, his resignation, was worded the same night, dated May 21, 1963 and was to be effective June 30, 1964, the date of the termination of his extended contract. It was delivered to a member of the board on or about May 28th. Between May 20, 1963 and June 12, 1963, plaintiff performed at least some of the duties of the superintendent. On June 7, 1963 a temporary superintendent was appointed and the secretary was authorized to have notice served on Mr. Luse to return school property in his possession. He received such notice on June 11, 1963. He returned the property 'under protest that I am still under legal contract as superintendent of the Waco Community School District'.

A new superintendent was hired July 15, 1963 on a contract to run from July 1, 1963 to June 30, 1964.

Plaintiff brought suit and recovered the full amount due him on the 1962--63 contract and the extension through June 30, 1964.

I. Defendants claim there is insufficient evidence to support the trial court's finding that plaintiff did not orally resign at the special meeting of May 20th, 1963. We do not agree. Such a contract can be terminated by mutual agreement. 1962 Code of Iowa, Section 279.13, Ashby v. School Township of Liberty (1959) 250 Iowa 1201, 98 N.W.2d 848. The question is whether an agreement was reached at that time as to when plaintiff's resignation was to be effective.

All witnesses agree a written resignation was to be submitted. If it was only to embody the terms of an oral resignation already agreed upon, this fact would not prevent the oral agreement from being binding. 17 Am.Jur.2d 363, Contracts, § 28; Anno. 165 A.L.R. 756, 759. See Marti v. Ludeking, 193 Iowa 500, 185 N.W. 476. However, there is evidence which supports the court's finding that no mutual agreement was reached at that special meeting. Plaintiff's testimony as to the proceedings is substantially supported by Dr. E. P. Herrmann and Mr. Davison, two board members who resigned the same evening. Mr. Davison heard the statement attributed to Mr. Troutman, the secretary, that he hoped 'he does not make it effective prior to June 30'. Although this is denied by many witnesses, a fact issue was created.

The trial court's finding that there was no agreement plaintiff's resignation was to be effective immediately is supported by the board's minutes. The minutes for the special meeting on May 20th, 1963 state the resignations of Dr. Herrmann and Mr. Davison were 'effective immediately'. The minutes referring to plaintiff's resignation state: 'Supt. Carl Luse expressed his oral resignation with a written statement to be submitted the following day. Motion by King, seconded by Hult to accept the resignation. Carried.'

The minutes of May 21st state: 'Motion by Hult, seconded by King to appoint A. K. Elgar as WACO Community school attorney. Mr. Elgar was to be instructed to contact Supt. Luse immediately about his resignation which was to be submitted on May 21, 1963.'

The minutes of May 23rd state: 'Mr. A. K. Elgar, as WACO school attorney, met with the board at this special meeting, called for the purpose of conferring with Mr. Luse as to the completion of his resignation.'

These minutes indicate even the board did not consider the oral resignation to be a completed resignation.

Plaintiff testified he was at the school office every working day until he received the notice to turn over all supplies and equipment belonging to the school district and tried to perform the duties of superintendent. It is undisputed that he did perform the superintendent's duties relating to graduation.

We therefore hold, there was substantial evidence to support the trial court's finding plaintiff did not resign by mutual agreement. There is evidence to support a finding the written statement was necessary and that there was no agreement on the effective date of the resignation.

II. Errors II and III relate to the requirements of pleading and proving mitigation. Defendants claim the court erred in holding they must affirmatively allege mitigation and in finding they did not carry the burden of proving this defense.

Section 619.8, Iowa Code 1962 states: 'No mitigating circumstances shall be proved unless pleaded, except such as are shown by or grow out of the testimony introduced by the adverse party.' We have said such statute is 'a special defense which defendant must plead and prove or he is limited to circumstances growing out of plaintiff's testimony.' Lannom Mfg. Co. v. Strauss Co., 235 Iowa 97, 106, 15 N.W.2d 899, 903; Shewry v. Heuer, 255 Iowa 147, 121 N.W.2d 529, 533.

Here the defense was not pleaded, but no attempt was made to introduce any testimony other than plaintiff's and this testimony is within the statutory exception. However, we agree with the trial court this evidence does not show a failure to mitigate. Plaintiff had interviews relating to two different superintendent's positions. According to his testimony he asked for a release so that he might seek other employment. This was never tendered except in connection with a release and settlement of all claims against the school district. The statute prohibited him from entering into another valid contract until a release had been obtained. Section 279.13. Failure to release him without a full settlement effectively prevented him from taking another job had it been offered. Defendants were familiar with the statutory requirement. Plaintiff's replacement was required to get a release from the board of the school at which he had previously been employed. There is no evidence he was offered any other job or refused any offers. The only evidence which might be considered a failure to mitigate was the fact that he did not contact the state department of public instruction...