Smith v. School Dist. No. 89

All members of the board of directors were present when appellant's application to teach the school was submitted to it. Therefore, a majority could legally contract with him. School District v. Bennett, 52 Ark. 511, 13 S.W. 132; School District v. Traywick, 118 Ark. 597, 177 S.W. 27. The question, then, is from a view of the evidence most favorable to the appellant, was there such an agreement then made which he could enforce? The majority has answered in the negative and invoked the familiar rule that where an offer is made the acceptance must be unequivocal and unconditional; that, where that acceptance is conditional or a new element is contained in it, there is no agreement, but such condition or new matter engrafted is to be deemed and treated as a rejection of the offer.

In the state of the case made by the appellant, it is my judgment that the rule announced has no application. If, when appellant's offer to teach the school at $95 per month had been rejected by the modification of the salary, the board had rested, then the rule stated in support of the decision reached would have applied. This, however, is not the situation, as is to be observed from the statement of facts formulated by the majority and which fairly reflects appellant's evidence. He was acceptable to the majority as a teacher, but the price set by him for his services was thought to be too much and it was then agreed to hire him at a salary of $90 per month if he would accept the same. This was a rejection of the application of the appellant but it was also something more. It was a counter offer which the appellant had the right to accept within a reasonable time, in which there would arise a contract, the action on the part of the board having been taken at a time and place where it was authorized to act.

"A counter proposition operates as a rejection of an offer, even if the offeree performs some services referable to such offer * * *. Since the acceptance with a modification is at least a counter offer, it may be accepted by the original offeror and thus may constitute a contract." Page on Contracts, 184; I, Iron Works v. Douglas,49 Ark. 355, 5 S.W. 585.

As I view it, the situation in legal effect is as if appellant had filed no application with the board, but that it, without any such, had agreed for him to teach the school at $90 per month, and, this being communicated to him, he within a reasonable time had accepted. In such state of the case, it seems to me there could be no question but that under the rule stated and our decisions there would have arisen a binding contract. Kempner v. Cohn, 47 Ark. 519, 1 S.W. 869; Emerson v. Stevens Grocery Co., 95 Ark. 421, 130 S.W. 541; Blanton v. Manufacturing Co., 138 Ark. 508, 212 S.W. 330; Jerome Hdw. Co. v. Davis Bros. Lbr. Co., 161 Ark. 197,255 S.W. 906; Southern Surety Co. v. Phillips, 181 Ark. 14,24 S.W.2d 870.

The general rules governing the making and construction of contracts have been uniformly applied to such as were made by school districts or other quasi corporations, subject only to some statutory limitation, and the rule that an offer made when accepted within a reasonable time constitutes a completed contract when made by school boards. Morton v. Hancock Co.,161 Tenn. 324, 30 S.W.2d 252; Baxter v. School District, 217 Mo. App. 389, 266 S.W. 760; Picou v. St. Bernard Parish (La.) 132 So. 130.

Lee v. Mitchell, 108 Ark. 1, 156 S.W. 450, was a case where the majority of a school board at a meeting attended by all of the directors and participated in by all of them agreed to hire a teacher, who was not present, at a certain salary. The contract was drawn and signed by the president and secretary of the board and then sent through the mail to the teacher who accepted and signed the contract. The contract was attacked as invalid, but this court upheld it.

The argument made by the appellee district, which appears to have weight with the majority of this court, is that the signing of the contract was at a time when the board was not in session and when one of the directors was absent from the State, and therefore that this was the time when the contract was made, and it is invalid under the rule announced in the case of School Dist. v. Bennett. 52 Ark. 511, and the case of School Dist. v. Jackson, 110 Ark. 262, 161 S.W. 153, that no contract tan he made except at a meeting of the school board. This contention overlooks the fact that the contract was made at a meeting of the board (subject to acceptance or rejection by the teacher), and the written contract was merely the evidence of its former action. It would therefore be immaterial when or where the contract was actually signed if it was signed within a reasonable time. Lee v. Mitchell, supra; School District v. Hundley,126 Ark. 622, 191 S.W. 238.

I therefore respectfully dissent from the opinion of the majority.