Spice Valley School Tp. of Lawrence County v. Rizer

• Decision Date: 07 June 1938
• Docket Number: 27077.
• Parties: SPICE VALLEY SCHOOL TP. OF LAWRENCE COUNTY v. RIZER.
• Court: Indiana Supreme Court

15 N.E.2d 390

214 Ind. 528

SPICE VALLEY SCHOOL TP. OF LAWRENCE COUNTY v. RIZER.

No. 27077.

Supreme Court of Indiana

June 7, 1938

Appeal from Orange Circuit Court; Wilber W. Hottel, Judge.

Chester A. Davis and Boruff & Boruff, all of Bedford, and Owen S Boling, of Indianapolis, for appellant.

R L. Mellen, of Bedford, and Tucker & Tucker, of Paoli, for appellee.

SHAKE Judge.

The pending motion to dismiss this appeal is hereby denied on the authority of Board of Public Safety of the City of Muncie v. Walling, 1933, 206 Ind. 540, 187 N.E. 385.

Appellee brought an action to recover upon an indefinite teacher's tenure contract. The case was put at issue by a general denial and tried on a second paragraph of complaint. This paragraph alleged that the appellee was a duly licensed teacher under the laws of Indiana; that on September 8, 1929 he entered into a written contract with the appellant to teach for a term of eight months, beginning on September 9th of that year; that pursuant to said contract he did teach during said term; that on September 4, 1930, appellee entered into another contract with said township to teach in its schools, and duly performed said contract; that prior to entering into the contract of September 8, 1929, he had taught in the public schools of said township for more than five years continuously and was, by reason thereof, a permanent tenure teacher; that the township trustee refused to furnish appellee employment as a teacher during the school year beginning in September, 1931, although appellee was at all times ready, willing, able and qualified so to do, and tendered his services to the trustee for that purpose; and that appellee was entitled to recover $1800 on his contract. The contract entered into September 8, 1929, was made an exhibit to the second paragraph of complaint, but the contract of September 4, 1930, was not. There was a judgment against the appellant for $1800, followed by a motion for a new trial, which assigned that the decision was not sustained by sufficient evidence, that it was contrary to law, and that the court erred in excluding appellant's exhibits 2, 5 and 7.

The errors relied upon by the appellant may be summarized as follows: (1) That the contract sued upon is a necessary part of the complaint; that since the 1929 contract was made an exhibit and that of 1930 was not, the action must be deemed to be predicated upon the former, and since another contract was entered into subsequently thereto, the permanent contract relied upon had been conclusively abrogated by the parties; (2) that the exhibits offered and rejected were admissible under the answer in general denial to prove the cancellation of the tenure contract.

Both the 1929 and the 1930 contracts contained the following provision: 'It is further agreed by the contracting parties that all the provisions of the Teacher Tenure law approved March 8, 1927, shall be in full force and effect in this contract.' In the case of State ex rel. Black v Board of School Commissioners of City of Indianapolis, 1933, 205 Ind. 582, 586, 587, 187 N.E. 392, this court held that a teacher's indefinite contract is not terminated by a new contract subsequently entered into between the parties unless the intention to abrogate the indefinite contract is clearly indicated in the new agreement. ...