Tolleson Union High School District v. Kincaid

• Decision Date: 19 December 1938
• Docket Number: Civil 3970
• Citation: 85 P.2d 708,53 Ariz. 60
• Parties: TOLLESON UNION HIGH SCHOOL DISTRICT, Appellant, v. HORACE KINCAID, Appellee
• Court: Arizona Supreme Court

85 P.2d 708

53 Ariz. 60

TOLLESON UNION HIGH SCHOOL DISTRICT, Appellant, v. HORACE KINCAID, Appellee

Civil No. 3970

Supreme Court of Arizona

December 19, 1938

APPEAL from a judgment of the Superior Court of the County of Maricopa. Wm. G. Hall, Judge. Judgment affirmed.

Mr John W. Corbin, County Attorney, and Mr. Lin Orme, Jr., his Assistant, for Appellant.

Mr Austin O'Brien and Mr. E. J. Hilkert, for Appellee.

OPINION

McALISTER, C.J.

H Kincaid was awarded judgment against the Tolleson Union High School District for $625, with interest, for services as principal of the high school maintained by that district, and from that judgment the defendant appeals.

The facts which give rise to the action are these: In June, 1928, the plaintiff was employed as principal of the Tolleson Union High School for the year beginning June 1, 1928, and on February 18, 1929, he and the board of education of that district entered into a written contract by which he agreed to serve as principal for a term of four years from the first day of June, 1929, and the board agreed to pay him for his services $3,250 the first year and $250 additional each year thereafter during the life of the contract, the salary to be paid each year in twelve equal monthly instalments. This contract was carried out during the first, second and third years of its life but on May 25, 1932, just prior to the beginning of its fourth year, the board, due to the economic condition then prevailing and the consequent inability of the district to collect taxes to conduct the school, took the following action at a special meeting, the plaintiff being present and serving as secretary:

"Discussion of teachers salaries: Teachers were reelected at salaries as follows:

per month

J. F. Paxton

$ 170.00

$ 1700.00 for 10 mos.

E. I. McCreight

170.00

1700.00 do

W. Fred Miller

185.00

1850.00 do

Geneva Hofmann

155.00

1550.00 do

Lorna McMonagle

155.00

1550.00 do

H. Kincaid

300.00

3600.00 for 12 mos.

"Motion made by Mr. Van Landingham, seconded by Mr. Roop that the above teachers be given contracts for a period of eight months, to be extended for a full term of 10 months, if financial conditions warrant. Carried."

On June 27th following this action the plaintiff prepared for the board a budget for the district for the year 1932-1933 in which he set up his salary as principal at $3,600 or $300 per month, and from June 1, 1932, to June 1, 1933, he made out his salary vouchers monthly for that sum, instead of $333.33 as the contract of February 18, 1929, provided for that year, and accepted payment in that amount.

The foregoing facts are not in dispute but the plaintiff was permitted to testify in substance over the objections of the defendant that at a meeting of the board on May 25, 1932, when the teachers were elected for the following year at reduced salaries, there was a discussion of the financial condition of the district and its possibility of continuing school for the next year for the required length of time and that he, because the district was then in the red on account of these conditions, agreed to accept $3,600 of the $4,000 fixed by the written contract as salary for that year, but it was suggested that there would be a way found perhaps later after conditions improved to take care of the $400 balance and that he expected it would be paid him when the district was in better condition. A member of the board at that time, Mr. R. K. Wood, testified in effect that he gained the same impression and Mrs. Nora Mann, also a member of the board, testified that they talked of the financial condition of the district and that they had to cut salaries but that she did not hear plaintiff say that he approved the cut or didn't, and that the board did not take any action to "supersede or modify" plaintiff's four-year contract.

Two other members of the board at the time testified, upon the other hand, that plaintiff himself suggested that the teachers take a ten per cent. cut the next year, one of them stating that he said he would "knock off" the $400, and that there was no understanding that it would be paid him in the future.

On May 17, 1933, the plaintiff was re-employed as principal for the year beginning July 1, 1933, at $225 per month for twelve months, the minutes which he recorded as secretary showing his acceptance, and on May 7, 1934, he was again employed for the year beginning July 1, 1934.

Pursuant to the action of the board on May 17, 1933, a written contract, to begin July 1, 1933, was entered into on June 28th and the four-year contract, whether modified or not on May 25, 1932, ended May 31, 1933; hence the month of June, 1933, was included in neither. So on June 24, 1935, just prior to the expiration of the contract entered into in 1934 and the severance of his relations with the Tolleson district, he drew a voucher in the sum of $300 for his salary for the month of June, 1933, and in connection therewith wrote the board stating that this sum was not paid him on account of financial conditions at the time, but that the suggestion was made then that some way would be found to take care of it when the district got out of the red, and that it was then in good condition. The board did not pay the claim upon presentation but took time to consider it and while doing so plaintiff sent it several communications concerning the claim.

In none of these letters, however, did plaintiff make reference to any other claim he had against the district, but on December 7, 1935, he mailed to the clerk and the president of the board what he termed a deferred salary claim against the district in the sum of $826.78, which was composed of these items: $400 or $33.33 per month for the year beginning June 1, 1932, with interest on each $33.33 from the date it became due; and $300 for the month of June, 1933, with interest thereon from July 1, 1933. This claim was not paid, so early in 1936 plaintiff filed this action, and the third amended complaint on which it was tried states two causes of action. The first sets up the four-year contract, its full performance by the plaintiff, and a balance of $400 due thereon; and the second was in quantum meruit for his services for June, 1933, the reasonable value thereof being placed at $300. In both causes interest on the sums found to be due was claimed.

In answering the first cause of action, the defendant admits that under the four-year contract the amount agreed to be paid plaintiff for the year 1932-1933 was $4,000 but alleges that on May 25, 1932, due to economie conditions and inability of the district to collect the taxes to conduct school, the plaintiff agreed to accept $3,600 for that year; that this agreement, which was entered in the minutes of the board of that date, has been fully executed and the plaintiff paid the full amount he was entitled to thereunder; and that by accepting $3,600 as salary for the year 1932-1933, the plaintiff waived his right to claim any further amount under the contract.

The answer to the second cause of action was a general denial.

The court found in the first cause of action that the plaintiff performed fully under his four-year contract but that he received for those services only $14,100 instead of $14,500, thus leaving a balance of $400 still due him; that there was no subsequent agreement between the plaintiff and defendant to modify the contract with respect to the amount to be paid thereunder and that the $400 withheld was a temporary reduction to be paid at a later date. The conclusion was that the plaintiff never received payment of the $400 and that the defendant was still indebted to him for it. Such was its judgment.

In the second cause of action the court found that in June, 1933, plaintiff, with the knowledge of defendant, rendered services as principal; that these services were directed and accepted by the defendant; that there was no understanding that plaintiff should render them without compensation; and that they were of the reasonable value of $225. From this finding the court concluded that the defendant employed plaintiff as principal for the month of June, 1933, and that the acceptance of his services with knowledge of their performance and the retention of the benefits thereof constituted a contract of employment entitling him to recover, even though the contract was not in writing. Hence the judgment in his favor.

The defendant appeals from the judgment in both causes of action and in its attack upon the holding that the plaintiff is entitled to recover the balance of $400, it assigns several errors but we will consider first the contention that the evidence does not support the finding that the the parties did not modify the four-year contract on May 25, 1932, as to the amount to be paid him and that the $400 withheld during that year was a temporary reduction only. The testimony of the plaintiff was, in substance, that the district was then in the red on account of depressed financial conditions and that it did not appear that they would be able to run the school the required length of time the following year, so it became necessary to reduce expenses. Thereupon the teachers were employed for the following year at lower salaries and the plaintiff agreed to work for $3,600 instead of the $4,000 the contract he already had called for, though he testified that he did not forego the extra $400 entirely but merely postponed the time of its payment until the...