Robertson v. McCune, 371
| Decision Date | 17 July 1970 |
| Docket Number | G,No. 45736,No. 371,371,45736 |
| Citation | 472 P.2d 215,205 Kan. 696 |
| Parties | David V. ROBERTSON, Jr., Appellant, v. Lloyd McCUNE, Victor V. Thomas, Otis R. Elliott, Carl L. Love, William H. Wall, and Riley Winkler, the duly elected and acting members of the Board of Education of Montezma Unified School Districtray County, Kansas, Appellees. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. In an action on a written contract parol evidence may be relied upon to clarify an ambiguity or supply an omission, but it may not be used to nullify a clear and positive provision of the writing.
2. When a motion to dismiss under K.S.A. 60-212(b)(6), (now 1969 Supp.), puts at issue the legal sufficiency of a claim, the motion must be decided from the well-pleaded facts and, in such case, the motion may be treated as the modern equivalent of a demurrer.
3. In an action instituted by a teacher to recover damages for the breach of a contract of employment, the record is examined and it is held: The trial court did not err in sustaining the defendant board of education's motion to dismiss under K.S.A. 60-212(b)(6), (now 1969 Supp.), for the reasons set out in the opinion.
Thoms C. Boone, Hays, argued the cause and was on the brief for appellant.
Dale M. Stucky, of Fleeson, Gooing, Coulson & Kitch, Wichita, argued the cause, and Donald R. Newkirk, Wichita, and Donald C. Smith, of Mitchell, Smith & Patton, Dodge City, were with him on the brief for appellees.
Plaintiff-appellant brought this action on his written contract of employment as a teacher against defendants-appellees.
Defendants, pursuant to K.S.A. 60-212(b), (now 1969 Supp.), filed a motion to dismiss the action on the ground that the petition failed to state a claim upon which relief could be granted. The motion was sustained and this appeal ensued.
In his petition plaintiff alleged that on March 19, 1968, defendants, acting through their superintendent, delivered to plaintiff a contract for the school year 1968-1969 and a letter of transmittal signed by Wm. E. Lockhart, Superintendent. That shortly after receipt of two documents, plaintiff contacted the superintendent and advised him that he would not teach any courses other than those which were listed by the superintendent in his letter of transmittal. Plaintiff further alleged that he was assured by the superintendent that the courses listed in the letter would constitute his teaching assignment for the ensuing year.
Plaintiff further alleged that after the commencement of the school year he was informed by the superintendent, acting for defendants, that he would be required to teach an eighth grade class in English, which was not listed in the superintendent's letter. Plaintiff refused and on December 6, 1968, was advised in writing by the president of defendant board of education that he was discharged from his teaching position because his refusal of the assignment constituted a breach of the contract.
The superintendent's letter to plaintiff, the contract, and the letter of dismissal sere attached to plaintiff's petition as exhibits.
In his brief of appeal, plaintiff contends the failure to state the courses, which plaintiff would be required to teach, on certain blank lines in the contract results in a patent ambiguity or an unexplained omission in the contract which requires explanation by parol evidence.
Apparently, the contract was written on a standard form provided for teachers' contracts. The portion with which we are concerned provides that the teacher is employed--
'* * * to perform the following services in conformity with Kansas law and the policies of the board;
'To teach all days when school is regularly scheduled;
'To make and file all reports required by the board or superintendent;
'To attend professional meetings authorized by the board or superintendent;
'To cooperate with the administrators and other teachers in planning and coordinating the teaching program;
'To perform such school services as may be mutually agreed upon by the board and teacher and listed herein.'
Following this listing of the teachers' obligations there appears two blank lines on the contract form. Nothing was written on the two blank lines, which were followed by salary terms and this provision:
'The board reserves the right to assign said teacher to such building and work as the best interest of the schools of the district require.'
As previously noted, the contract, when delivered to plaintiff, was enclosed with a letter from the superintendent, addressed to plaintiff, which reads in pertinent part as follows:
'It looks to me at this time that you will be assigned the following classes:
'You would also have sponsorship of classes, etc., that are normally assigned to teachers in a high school.
'Sincerely yours,
'/s/ Wm. E. Lockhart, Superintendent'
The position taken by plaintiff, as we understand it from his brief, is that the two blank lines in the contract create an ambiguity, or indicate an omission; that the teaching assignments stated in the superintendent's letter should have been inserted in the blank lines; and that he should be allowed to supply the omission by parol testimony.
Plaintiff cites decisions of this court to the effect that parol evidence is admissible to supply an omission in a written contract such as in Gibbs v. Erbert, 198 Kan. 403, 424 P.2d 276, where it was held:
'Where a written contract is incomplete or silent in some essential point incident thereto, parol evidence is admissible to aid in its construction or to show the complete agreement of the parties of which the writing is only a part.' (Syl. 3.)
As an abstract principal of law, the correctness of the rule cited by plaintiff must be conceded, but it is inapplicable with respect to the instant contract. Given the most favorable interpretation, the plaintiff's petition and attached exhibits fail to show any ambiguity or omission.
Plaintiff executed the contract after receiving the superintendent's letter and his alleged subsequent conversation with the superintendent. The defendant board expressly reserved the right to assign the teacher in the...
To continue reading
Request your trial
-
Knight v. Neodesha, Kan., Police Dept.
...& Associates v. Urban Renewal Agency, 206 Kan. 405, 413-14, 479 P.2d 875 (1971), wherein the Supreme Court said: "In Robertson v. McCune, 205 Kan. 696, 472 P.2d 215, we considered the scope of a motion to dismiss and " 'When a motion to dismiss under K.S.A. 60-212(b)(6) ... raises an issue ......
-
First Nat. Bank of Olathe v. Clark
...and nullifying its clear and positive provisions." Weiner v. Wilshire Oil Co., 192 Kan. at 496, 389 P.2d at 808. Robertson v. McCune, 205 Kan. 696, 699, 472 P.2d 215 (1970). One final rule of construction must be noted here. In construing an ambiguous or indefinite contract, the court "may ......
-
Hall v. Mullen, 55768
...the face of the instrument leaves it genuinely uncertain which one of two or more meanings is the proper meaning. Robertson v. McCune, 205 Kan. 696, 700, 472 P.2d 215 (1970). If a written contract is actually ambiguous concerning a specific matter in the agreement, facts and circumstances e......
-
Chapman v. Haney Seed Co., Inc.
...572 P.2d 1195 (1977); Arrington v. Walter E. Heller International Corp., 30 Ill.App.3d 631, 333 N.E.2d 50 (1975); Robertson v. McCune, 205 Kan. 696, 472 P.2d 215 (1970); 32A C.J.S. Evidence § 959(1)a (1964). See also Ace Supply, Inc. v. Rocky-Mountain Machinery Co., 96 Idaho 183, 525 P.2d 9......