Still v. Lance, No. 105

• Docket Nº: No. 105
• Citation: 279 N.C. 254, 182 S.E.2d 403
• Case Date: July 30, 1971
• Court: United States State Supreme Court of North Carolina

Page 403

182 S.E.2d 403 279 N.C. 254, 120 L.R.R.M. (BNA) 2086 Mrs. Lucy STILL
v.
Dale LANCE et al. No. 105. Supreme Court of North Carolina. July 30, 1971.

[279 N.C. 259] Smith, Moore, Smith, Schell & Hunter by McNeill Smith and Martin N. Erwin, Greensboro, McGuire, Baley & Wood by J. M. Baley, Jr., and Hendon & Carson by Philip G. Carson, Asheville, for plaintiff.

Van Winkle, Buck, Wall, Starnes & Hyde by Herbert L. Hyde, Asheville, for defendants.

LAKE, Justice.

The contract between the plaintiff and the County Board of Education, dated 26 May 1967, was executed in accordance with and in the form required by G.S. § 115--142. It expressly incorporates within itself the provisions of the school law, including this statute. Upon its face, it contains no provision concerning the duration of the employment or the means by which it may be terminated. Nothing else appearing, such a contract of employment, even though it expressly refers to the employment as 'a regular, permanent job,' is terminable at the will of either party irrespective of the quality of performance by the other party. Tuttle v. Kernersville Lumber Co., 263 N.C. 216, 139 S.E.2d 249; Wilkinson v. Erwin Mills, 250 N.C. 370, 108 S.E.2d 673; Long v. Gilliam, 244 N.C. 548, 94 S.E.2d 585; Howell v. Commercial Credit Corp., 238 N.C. 442, 78 S.E.2d 146; Malever v. Kay Jewelry Co., 223 N.C. 148, 25 S.E.2d 436; May v. Tidewater Power Co., 216 N.C. 439, 5 S.E.2d 308; Elmore v. Atlantic Coast Line R.R., 191 N.C. 182, 131 S.E. 633; 43 A.L.R. 1072; Currier v. M. Ritter Lumber Co., 150 N.C. 694, 64 S.E. 763.

Where, however, there is a business usage, or other circumstance, appearing on the record, or of which the court may take judicial notice, which shows that, at the time the parties contracted, they intended the employment to continue through a fixed term, the contract cannot be terminated at an earlier period except for cause or by mutual

Page 407

consent. See: Malever v. Kay Jewelry Co., supra; 53 Am.Jur.2d, Master and Servant, § 27; Annot., 161 A.L.R. 706, 713. The nature of school operations is such that, in the absence of evidence of a contrary intent, a contract for the employment of a school teacher is presumed to be intended by the parties to continue to the end of the school year and not to be terminable by either party prior to that time without cause and without the consent of the other party. G.S. § 115--145, incorporated by reference into the contract before us, states the causes for which a teacher may be dismissed prior to the expiration of the school year for which he or she has been employed and prescribes the procedure, including[279 N.C. 260] notice and hearing, to be followed in order so to dismiss a teacher. It is not contended that this statute has application to the present controversy.

The question before us relates solely to the right of the County Board of Education, having entered into a contract of employment with a teacher, to terminate the employment at the end of a school year. G.S. § 115--142(b), incorporated into and made a part of the contract, on which the plaintiff relies, as completely as if set forth verbatim therein, provides:

'All contracts now or hereafter entered into between a county or city board of education and a teacher, principal, or other professional employee shall continue from year to year Unless terminated as hereinafter set forth. When it shall have been determined by a county or city board of education that an employee is not to be retained for the next succeeding school year it shall be the duty of the county or city superintendent to notify the employee, by registered letter deposited in mails addressed to last known address or business address of employee prior to the close of the school year, of the termination of his contract. When it shall have been determined that the services of an employee are not acceptable for the remainder of a current school year, and that the employee should be dismissed and relieved of his position immediately, the provisions and procedures of G.S. 115--67 and G.S. 115--145 shall be applicable.' (Emphasis added.)

It is stipulated that the Board of Education in the present instance followed precisely the procedure prescribed in this statute. It is quite clear that this statute, and so the contract entered into by the plaintiff and upon which she relies, prescribes a procedure for terminating the employment of a teacher at the end of a school year entirely different from the procedure prescribed for the dismissal of a teacher during the school year. The statute, and so the contract before us, does not limit the right of the employer board to terminate the employment of a teacher at the end of a school year to a specified cause or circumstance....