McKay v. Barnett

Basein, J. It is conceded that the Board of Education had authority to make said contract. 1. The first point of contention is, whether the plaintiff, under said contract, is entitled to compensation for the period of sixteen days during which the schools were closed, and during which she was not actually occupied in teaching. In construing the contract each of its provisions must be considered in connection with the others, and if possible effect must be given to all. A construction which entirely neutralizes one provision should not be adopted, if the contract is susceptible of another which gives effect to all of its provisions. By the terms of the contract the plaintiff bound herself “ to give her entire time and best efforts in any of the schools of said city to which she might be assigned ” for four weeks of five days each, in each month from September 11, 1899, until June 1, 1900, or until the termination of the contract by the Board of Education for misconduct, etc., or for any other reason than those specially mentioned, on four weeks’ notice. From the foregoing provisions the following provisions are clearly implied, and are as apparent as if they had been expressed in direct terms, to wit: that the Board of Education shall [245] in case it failed to furnish plaintiff with employment as teacher, pay her the stipulated wages during the time mentioned, or until said board terminated the contract as therein provided. Closing the schools was not therefore a breach of the contract, and did not release the plaintiff from her obligations under the same. Her rights were in no way affected by closing the schools, nor was the obligation of the Board of Education changed in the least. The only infraction of plaintiff’s rights in the premises, was the refusal to pay said warrant. It is claimed by counsel for the defendant, that by the following terms of the contract, to wit: “For the time actually occupied in school,” the right of the plaintiff is ' limited to that time exclusively, and as she was not actually occupied in school during the period of the sixteen days that the schools were closed, the treasurer properly refused to pay said warrant. Such a construction of that clause would neutralize the clearly implied provisions of the contract before mentioned and permit the Board of Education to close the schools as often and for as long periods of time as they might choose to do so, during the life of the contract, without the consent of the plaintiff, and without compensating her for the loss of employment, notwithstanding she is bound to serve for the whole period mentioned in the contract, or until it is terminated by the board in the manner therein specified, and keep herself in readiness to perform her duties as teacher whenever required to do so hy the board. During such periods the plaintiff could not, without violating the contract, enter into any other permanent engagements. Such a construction would make the contract unreasonable and oppressive. We are of the opinion that the parties did not intend [246] that said clause should have the effect contended for by counsel for defendant. It was simply intended to prohibit the plaintiff from drawing her salary, during any vacation which the board might grant her, or during the time which she might, from sickness or some other excusable cause, be unable temporarily, to discharge her duties when the schools were in session. In the case of Charleston School Township v. Hay, 74 Ind., 127, the contract was to pay the teacher for the services actually rendered, and in that case, as in the case at bar, it was contended that the teacher’s right to compensation was confined to the days in which the school was actually taught by her, but the court held otherwise, and permitted her to recover for the time the school was closed during the term. 2. The second point raised is, whether or not the action of the local board of health in the premises relieved the board of education from its obligation under the contract to pay the plaintiff her salary for the period that the schools were closed. If the local board of health had possessed, at the time said contract was entered into, lawful authority to order the schools closed whenever smallpox should become prevalent, and continued to possess such authority up to the time when it acted in the premises, and also had lawful authority to enforce such an order, then the defendant in that event might, with much better show of reason, insist that the parties contracted in view of such authority, and contemplated if a smallpox epidemic should occur during the life of the contract, the Board of Education might be legally compelled against its will and without fault on its part, to close the schools, and that during the time the schools were so closed, under such authority, no salary should be paid to the plaintiff. But the local board of health had no such authority at the time the con [247] tract was made, and have not since had any such authority. 3. The third point is whether the closing of the schools by the Board of Education on account of the prevalence of smallpox, released the board from its obligation to pay the plaintiff her salary during the time, the schools were closed. In the case of Jones v. The United States, 96 U. S., 29, the court said: ‘‘Impossible conditions can not be performed; and if a person contracts to do what at the time is absolutely impossible, the contract will not bind him, because no man can be obliged to perform an impossibility; but where the contract is to do a thing which is possible in itself, the performance is not excused by the occurrence of an inevitable accident or other contingency, although it was not foreseen by the party, nor was within his control. Ghitty, Oontr. 663; Jervis v. Tompkinson, 1 H. & N., 208. ” Where the contract is to do acts which can be performed, nothing but the act of God or of a public enemy, or the interdiction of the law as a direct and sole cause of the failure, will excuse the performance. This principle is elementary. The schools were not closed for any such cause by the Board of Education. While the closing of the schools may have been wise and prudent, the closing was not due to any cause which made it impossible for the schools to keep open. The Board of Education might have stipulated that the plaintiff should have no compensation during the time the school should be closed on account of the prevalence of contagious diseases, but not having done' so it can' not deny the compensation during such time on account of the prevalence of smallpox. Libby v. Inhabitants of Douglass., 55 N. E., 808; Gear, et al., v. Gray, 73 N. E., 1059; Dewey v. School District, 5 N. W., 646. There wcro some other points of minor importance [248] raised in the argument which we do not deem it necessary to comment upon. It is ordered that the writ of mandate be issued, commanding Josiah Barnett, Treasurer of the Board of Education, to pay to the plaintiff, out of the funds in his hands as such treasurer, upon the presentation of the warrant for $56, issued by said board to the plaintiff, and which is referred to in the affidavit of plaintiff, and in the answer of the defendant, and that the defendant pay the costs of this proceeding, taxed at-dollars.