Smith v. School District No. 18

I dissent. The sole question for determination in this action is the interpretation of the written contract between the plaintiff and the school board. The majority decision converts the written contract of the parties into a scrap of paper and flies in the face of the elementary law of contracts. It is not debatable that a written contract supersedes all oral understandings and negotiations; that the intention of the parties is to be ascertained from the writing alone, if possible (secs. 7529, 7530, Rev. Codes), unless through fraud, mistake or accident it fails to express that intention (sec. 7531), and that the courts have no power to make new contracts for the parties. No fraud, mistake or accident is alleged nor proved.

While a teacher's employment is sometimes spoken of as an office, it is purely contractual and the present suit is solely in contract. After a teacher is elected or chosen by the board of trustees, a contract in writing is required to be made and executed by section 1015, Revised Codes. His re-employment or re-election, either actual, or by default under section 1075, can effect nothing but a renewal of the contract under which he is serving.

It is my view that the intention of the parties to a contract must be determined from the language employed in the contract, and from that source alone, except where the language is indefinite or ambiguous; that resort to extrinsic evidence to discover such intention, by way of looking to the interpretation the parties themselves have given to the contract, can never be allowed if the terms of the contract are set out in clear, simple, and explicit language.

All of plaintiff's contentions and arguments are grounded on evidence aliunde the contract, and by that means he attempts by parol evidence to vary or contradict a clear provision of a valid written contract in violation of section 7569, Revised Codes. (See, also, Kinsman v. Stanhope, 50 Mont. 41, 144 P. 1083, L.R.A. 1916C, 443; Pritchett v. Jenkins, 52 Mont. 81,155 P. 974; Lish v. Martin, 55 Mont. 582, 179 P. 826; Swan v. Le Clair, 77 Mont. 422, 251 P. 155.)

"There can be no evidence of the contents of a writing, other than the writing itself, except in the following cases: * * *." (Sec. 10516, Rev. Codes.) Five exceptions are specified by the section, none of which apply here, thus making the statute absolute in the case at bar. (See Wilson v. Davis, 110 Mont. 356,103 P.2d 149.) The provisions of the contract that are pertinent to the issues involved are as follows:

"This Agreement, Made and entered into this 12th day of April, 1939, between J.R. Smith, party of the first part, and the Board of Trustees of School district No. 18, of Pondera County, Montana, parties of the second part,

"Witnesseth, That the said J.R. Smith, who holds a legal valid certificate for said county, hereby agrees for the consideration hereinafter stated, to teach in said school district for the period of 9 months, commencing on the 2nd day of September, 1939, and said J.R. Smith agrees to enforce the rules and regulations prescribed by the Superintendent of Public Instruction and the County Superintendent of Schools.

"And The Parties of the Second Part hereby agree to pay the said J.R. Smith One Hundred and Forty Five Dollars for each and every month of twenty school days, in the manner following, to-wit: By drawing their order upon the county treasurer of said county to be paid out of the school moneys in the county treasury to the credit of said school district."

The contract is in plain and simple language and entirely free from ambiguity. After teaching in the Valier schools for several years the plaintiff was assigned to a rural school in the same district, and at the same salary. He refused to accept the assignment on two grounds: (1) Lack of living facilities for himself and family; and, (2) his lack of qualifications to teach in the lower grades. This last objection was in direct conflict with the teacher's certificate by virtue of which he was employed.

The function of the court is to construe the contract the parties have made themselves, not attempt to make a new contract for them. Whether the plaintiff "made a good or a bad bargain is not for the courts to determine. Rather it becomes the duty of the courts to enforce such contracts (Best Mfg. Co. v.Hutton, 49 Mont. 78, 141 P. 653; Friesen v. Hart-ParrCo., 64 Mont. 373, 209 P. 986), not to make new ones for the parties, however unreasonable the terms may appear. (Frank v.Butte Boulder Mining Lumber Co., 48 Mont. 83, 135 P. 904;Pearce v. Metropolitan Ins. Co., 57 Mont. 79, 186 P. 687;State Bank of Darby v. Pew, 59 Mont. 144, 195 P. 852;Friesen v. Hart-Parr Co., supra; Emerson-Brantingham Imp.Co. v. Raugstad, 65 Mont. 297, 211 P. 305; General FireExtinguisher Co. v. Northwestern Auto Supply Co., 65 Mont. 371,211 P. 308.) Merely because the defendant may have reason to regret his bargain affords him no ground to avoid the obligation of his contract." (McConnell v. Blackley, 66 Mont. 510,214 P. 64, 66.) Later cases to the same effect areHinerman v. Baldwin, 67 Mont. 417, 215 P. 1103; Batchoff v. Melzner, 71 Mont. 411,230 P. 48; Viers v. Webb, 76 Mont. 38, 245 P. 257, Biering v.Ringling, 78 Mont. 145, 252 P. 872; Linn v. French,97 Mont. 292, 33 P.2d 1002.)

"Resort to interpreattion [of a contract] is never to be had where the meaning is free from doubt. It is to be availed of only when, without its aid, the meaning or effect of the contract would be doubtful or uncertain." (Ming v. Pratt, 22 Mont. 262,56 P. 279, 280; Bullard v. Smith, 28 Mont. 387,72 P. 761; Spaulding v. Maillet, 57 Mont. 318, 188 P. 377.) This rule has, in numerous decisions by this court, been also expressed in another fashion, as in the leading case of Cruse v. Fischl, 55 Mont. 258, 175 P. 878, 880, where it was said relative to the interpretation of a statute that "whenever the language of a statute is plain, simple, direct, and unambiguous, it does not require construction, but it construes itself." The same rule of construction applies to contracts.

It is contended that, the plaintiff having been assigned by the school board to teach in the Valier schools and retained in that position for a number of years, such a state of facts clearly shows the construction the parties to the contract have placed thereon, citing Cook-Reynolds Co. v. Beyer, 107 Mont. 1,79 P.2d 658; and 12 Am. Jur., sec. 249, at page 789. Both citations relate to indefinite or ambiguous contracts. The contract before us contains no ambiguity whatever. Sections 227, 228 and 229, Contracts, at pages 745 et seq. of 12 Am Jur., lay down the universal rules governing the construction of contracts that are not in terms ambiguous or uncertain which is to this effect: "Generally speaking, the cardinal rule in the interpretation of contracts is to ascertain the intention of the parties * * *. The law presumes that the parties understood the import of their contract and that they had the intention which its terms manifest. It is not within the function of thejudiciary to look outside of the instrument to get at theintention of the parties and then carry out that intention regardless of whether the instrument contains language sufficient to express it; but their sole duty is to find out what was meant by the language of the instrument. * * * In other words, the object to be attained in interpreting acontract is to ascertain the meaning and intent of the parties asexpressed in the language used.

"A court is not at liberty to revise an agreement whileprofessing to construe it. Nor does it have the right to make acontract for the parties * * *. Neither abstract justice nor the rule of liberal construction justifies the creation of a contract for the parties which they did not make themselves or the imposition upon one party to a contract of an obligation not assumed. Courts cannot make for the parties better agreementsthan they themselves have been satisfied to make or rewritecontracts because they operate harshly or inequitably as to oneof the parties. If the parties to a contract adopt a provision which contravenes no principle of public policy and contains no element of ambiguity, the courts have no right, by a process of interpretation, to relieve one of them from disadvantageous terms which he has actually made.

"There is no right to interpret the agreement as meaningsomething different from what the parties intended as expressedby the language they saw fit to employ. The court is not atliberty, either to disregard words used by the parties,descriptive of the subject matter or of any material incident, orto insert words which the parties have not made use of." (12 Am.Jur., Contracts, sec. 228, page 750.)

"A written instrument must ordinarily be interpreted to mean what on its face it purports to mean, unless some good reason can be assigned to show that the words used should be understood in a different sense. Words are to receive their plain and literal meaning even though the intention of the party drawing the contract may have been different from that expressed. It is said that the agreement of the parties is to be ascertained from the plain language used by them, no matter what the intention may have been. Presumptively, the intent of the parties to a contract is expressed by the natural and ordinary meaning of their language referable to it, and such meaning cannot be perverted or destroyed by the courts through construction. * * *

"Where the terms of a writing are plain and unambiguous, there is no room for construction, since the only office of judicial construction is to remove doubt and uncertainty. In such a case the courts have no right to make new contracts for the parties or ignore those already made by them, simply to avoid seeming hardships." (12 Am. Jur., Contracts, sec. 229, page 751 et seq.)

In State ex rel. Normile v. Cooney, 100 Mont. 391, 413,47 P.2d 637, 648, this court said: "The courts are not guardians of persons sui juris to protect them from signing contracts into which they desire to enter; the province of the court is to interpret and enforce contracts in accordance with their terms, when legitimate and based upon a valid consideration." (Citing cases.)

The cases following have been cited to sustain the contentions of the plaintiff, but have no application to such a contract as that before us for the reasons stated as to each case.

In the case of In re Womer (Appeal of Osceola BoroughSchool Dist.), 337 Pa. 349, 11 A.2d 146, the teacher was employed as a teacher and taught Civics for a time and was also assigned to incidental work as "teacher librarian." A renewal of her contract still mentioned that she was a "teacher" but she was assigned to the position of teacher librarian and subsequently dismissed on the ground that her certificate did not permit her to handle the position of teacher librarian. The court said:

"At the time appellee first entered the District's employ, she held a college provisional certificate, qualifying her to teach certain High School subjects. Her application for the position distinctly showed that she had no certificate to be a teacher-librarian. Despite the knowledge that she was not so qualified, the Directors of the School District on May 19, 1936, unanimously adopted a resolution electing her `to the position of Teacher-Librarian in the High School at a salary of $130.00 per school month.' The following day, the Board entered into a written contract with appellee, employing her as a `Teacher' for the school year 1936-37, and continued her employment for the subsequent year by the contract of May 6, 1937.

"Under the terms of her contract appellee was not required to possess a certificate as teacher-librarian, nor was it essential to the performance of the duties actually designated for her by the Board. * * *

"Appellee's failure to hold a teacher-librarian certificate for the school year 1938-39 was no valid reason for her dismissal. She never occupied the position of librarian. She was never asked to teach library science. Her provisional college certificate, upon the basis of which she was hired, fully qualified her to perform all the duties to which she was assigned, and her competency and efficiency as a teacher have never been questioned. The condition upon which the Board based its action in terminating her contract was one of which the members were fully aware when she was employed. * * *"

In the case of Williams v. School District No. 189,104 Wash. 659, 177 P. 635, Williams, according to his written contract, was employed as "principal" of District No. 173, Kings County. The district had two school houses. Subsequent to the employment of Williams, the two districts were consolidated and Williams was advised that a teacher from the other district had been made principal and Williams was demoted to a teacher serving under the new principal. He declined the assignment and sued for damages for breach of contract and was correctly sustained by the court.

In the case of Jackson v. Independent School District,110 Iowa 313, 81 N.W. 596, 597, from which extended quotations are made, the teacher was employed to teach in the intermediate department of the schools of the district. After some two months she was discharged and after being discharged was offered another position in the higher grades, which she declined. The court found that the offer to teach in the higher grades could not be accepted without modifying the written agreement and said: "Plaintiff was entitled to teach until she was properly discharged. As a result of defendant's wrongful conduct, she was prevented from complying with her contract."

In State ex rel. Ging v. Board of Education of Duluth (Minn.), 7 N.W.2d 544, the two teachers were refused re-employment because of a heavy reduction in the number of pupils in the public schools, and the two teachers involved in the action were of advanced ages, sixty-five and sixty-four, and they were refused further employment on no other ground than that a reduction in the number of pupils necessitated a reduction in the number of teachers. The court sustained their contentions that they were discharged without notice or hearing in violation of the school tenure Act.

In the case of People ex rel. Callahan v. Board ofEducation, 174 N.Y. 169, 66 N.E. 674, the teacher held a certificate showing qualification to teach in any grammar grade in the City of Brooklyn. She was appointed to teach in the sixth grammar grade in Public School No. 89. Later she was transferred to School No. 90 to teach the fourth grammar grade, a higher grade, and later transferred back to another school to teach in grade six at a reduced salary. The court sustained her action for damages on the ground that the transfer to a lower grade was a violation of the tenure Act. It is questionable whether this case is pertinent here under the general laws relating to tenure in the various jurisdictions for the reason that the case was decided under charter provisions of Greater New York and not under a state statute.

In the case of State ex rel. Bass v. Vernon Parish SchoolBoard, (La.App.), 194 So. 74, the teacher, after serving for three years as principal of a high school at a salary of $175 per month, was transferred to a grade school at $100 a month, and the transfer and demotion were made without any charges being preferred or complaints made against him. The court upheld his action for damages.

The case of Le Clair v. School District No. 28, 74 Mont. 385,240 P. 391, cited by plaintiff, is not in point. The written contract with the teacher in that case was for her employment as "assistant principal of the Ronan school." She was denied re-employment in that capacity and no timely offer was made as here for other like employment in the district.

In McBride v. School District No. 2, Silver Bow County,88 Mont. 110, 290 P. 252, also cited by plaintiff, the court found that the written notice to the teacher was not given in accordance with the provision of section 1075, Revised Codes, and that case is likewise not in point here. The further case ofDay v. School District No. 21, 98 Mont. 207,38 P.2d 595, cited by plaintiff is not in point, the court holding that the written notice was not given as required by section 1075, supra.

The judgment should be affirmed.