Sandry v. Brooklyn School District No. 78

Birdzell, J. This is an appeal from a judgment for $775 in an action upon four transportation contracts. The plaintiff brought action in his own right upon one of these contracts and as an assignee of three others. The contracts cover the conveyance of the teachers and pupils of the defendant school district for the period of nine months beginning September 23, 1918. They prescribe the routes of travel and the compensation of each driver. The school was open two weeks in September and October of 1918, when it was closed on account of the epidemic of influenza, and did not reopen until January 3, 1919. The drivers performed under the contracts during the time the school was open, and were paid for their services according to the [446] contract rate. They were not paid, however, for the period during which the school-was closed. This action is brought to recover the stipulated compensation as upon a performance of the contract during, the thirteen weeks the school was closed. The trial court instructed the jury that under the written contract the drivers would he entitled to recover the full amount stipulated as compensation, if they at all times held themselves in readiness to .perform, and were prevented from performing by the action of the board in closing the school; that it would make no difference in this respect whether the school was closed by the order of the board of health on account of the epidemic; that the method of avoiding liability upon the contract for this period would have been by cancelation, and that the contract had not been canceled. The court also left it to the jury to determine Whether or not, under the evidence, the parties themselves had placed a contrary interpretation upon the contract. This instruction was occasioned by evidence to the effect that at other times when the school had been closed for short periods the board, in compensating the drivers, deducted for the days the school was so closed. There was evidence that the drivers had received compensation on this basis without objection, but it was explained that the matter was of too trivial a nature to warrant any attention being paid to it. In our opinion this case turns upon the legal interpretation of the contracts. They are substantially the same, being upon printed forms. The following may be taken typical: “Witnesseth. “1. That the said William A. Sandry is to provide the safe conveyance of such teachers and pupils of the school in Brooklyn school district as live on or near the route designated in this contract, to the school in said school district by 8:45 a. m. of every school day, and back to their homes or places designated herein, being ready to leave the school by 4:10 p. m. of' every school day, during the school term of (91 nine months commencing on the 23d day of September, 1918. “2. That the said William A. Sandry shall furnish all necessary blankets and robes during inclement weather for the sufficient comfort of the persons conveyed. “3. That it shall be the duty of the said William A. Sandry to pre [447] serve orderly, conduct on the part of the children while in his care to or from the school, and to report all misconduct on the part of such children to the teacher or principal. “4. That the said William A. Sandry hereby expressly agrees to exercise great care in performing his duties as driver, and in preventing accidents to the children while in his care.. “5. That in case the said William A. Sandry should wish to engage any other person than himself to act as driver, written permission must first be granted by the president of the school board, but the said William A. Sandry is still responsible to the school board for the performance of this agreement. “6. That the route of travel to and from the school shall be as follows (unless a deviation from this route shall bo granted by the president of the school board) : For route No. two (2) between December 1st and April 1st to arrive at schoolhouse at 9 :20 a. m. and be ready to leave the schoolhouse at 3:45 p. m. “7. That for these services truly rendered the school board of said Brooklyn school district, Williams county, North Dakota, agrees to pay the said William A. Sandry at the expiration of each school month of service the sum of sixty-five and no/100 ($65) dollars: “Provided, That the school board reserves the right to withhold such part of the month’s wages as in their opinion is equitable in case the services do not meet this agreement. “Provided, Further, That the school board may at any time cancel this contract in case of the nonperformance of this agreement by the driver, or in case of the discontinuance of school.” The plaintiff regards this as a contract for personal services, and claims for each the same legal effect as the ordinary teacher’s contract. The authorities relied upon to support recovery are principally those dealing with teachers’ contracts where recovery has been allowed in circumstances similar to those presented here, on the ground that the teacher’s services are engaged for a stipulated term. It is held that where, during a portion of the term when the school was closed without the fault of the teacher, he or she necessarily remained in an attitude of readiness to perform, the compensation had, in effect, been earned. Under the-statutes of this state, teacher’s contracts are required to [448] contain an express stipulation against compensation in case the school be discontinued for the reasons stated in the statute. Comp. Laws 1913, § 1189. The statute has not assigned prevalence of an epidemic as a reason for discontinuance. From the fact that the law requires this provision to be inserted, it may fairly bo implied that the district agrees to pay the teacher the stipulated salary during the term of the engagement if the schools are temporarily closed for some such cause as an epidemic. ' Other statutory provisions require the teacher to bo compensated for legal holidays (Comp. Laws 1913, § 1382) and for periods of attendance upon teachers’ institutes. Comp. Laws 1913, § 1385. A teacher is required to have certain qualifications, and to have a certificate as a prerequisite to a right to receive compensation. Comp. Laws 1913, § 1382. The teacher is generally a person coming from outside the district, and the duties involved in the performance of the contract effectually preclude other employment for the period. In these circumstances it is a fair inference that the parties intend that the teacher should be compensated during periods of temporary suspension while he or she is held in a position of readiness to perform. Libby v. Douglas, 175 Mass. 128, 55 N. E. 808; Dewey v. Union School Dist. 43 Mich. 480, 38 Am. Rep. 206, 5 N. W. 646; Carthage v. Gray, 10 Ind. App. 428, 37 N. E. 1059; Randolph v. Sanders, 22 Tex. Civ. App. 331, 54 S. W. 621; McKay v. Barnett, 21 Utah, 239, 50 L.R.A. 371, 60 Pac. 1100; 3 Williston, Contr. § 1958; 3 Page, Contr. § 1376. Is the driver’s contract of the same character ? We arc of the opinion that it is not. No specific qualifications are prescribed. The contract is generally entered into between the district and some person within it. Its performance involves little or no preliminary preparation. The driver is not required to furnish the bus or other vehicle of conveyance. The performance does not require the whole time of tli(> driver, and, while personal performance is contracted for, it clearly appears from the evidence in this case that the school district readily paid for the service, though the work of driving was delegated to suit the convenience of the driver. The dissimilarity of these two contracts gives rise to widely different points of view in construing them for the purpose of ascertaining the true intention of the parties. We think it quite clear that the holding in readiness required of the driver during [449] a period of prolonged suspension involves so little inconvenience on his part that it cannot reasonably be said to be the intention of the contracting parties that he should be paid for such period. In these circumstances the ordinary rule applicable to personal-service contracts applies. They are subject to the implied condition, on the one side, of ability to perform, and, on the other,- of ability to receive performance. Either party is excused if, without his fault, performance for a period becomes impossible. Such impossibility may arise upon the sickness or death of either party, or the inability of one party to give or receive performance, occasioned by the prevalence of an epidemic. Lakeman v. Pollard, 43 Me. 463, 69 Am. Dec. 77. The stipulated compensation is the equivalent of full performance, and where nonperformance for an extended period is excused on either side by reason of practical impossibility, the service actually rendered is not such a substantial performance as to entitle the plaintiff to full compensation. See Littell v. Webster County, 152 Iowa, 206, 131 N. W. 691, 132 N. W. 426; 2 Williston, Contr. § 838. See also Lacy v. Getman, 119 N. Y. 109, 6 L.R.A. 728, 16 Am. St. Rep. 80. As we view the contracts in the instant case, the situation of the parties is in no respect different from what it would have been had they, in January, 1919, -upon the reopening of the school, rescinded the contracts made in September and entered into new agreements for the remainder of the term. In that event we do not think it could have been reasonably claimed by the plaintiff that the actual conveyance of the pupils for two weeks under these contracts- was a substantial performance for fourteen or fifteen weeks. Being of the opinion that the contracts in question must be construed as above indicated, it follows that the plaintiff may not recover the agreed compensation for the period during which the school was closed. The judgment is reversed and the action dismissed. Robinson, Ch. J., and Christianson, J., concur.