Summary
In Metropolitan State Faculty Federation v. State, 32 Colo.App. 420, 425, 514 P.2d 784, 786 (1973), another division of this court found valid consideration where employees received employment to which they were not previously entitled under an earlier contract and therefore received a benefit in exchange for modifications to a second contract.
Summary of this case from Lucht's Conc. Pumping v. HornerOpinion
No. 72-081
Decided July 31, 1973. Rehearing denied August 21, 1973. Certiorari denied October 23, 1973.
Action against college seeking damages resulting from alleged breach of teachers' employment contracts in regard to alleged salary due teachers for teaching in summer term. From judgment for plaintiffs, college appealed.
Reversed
1. APPEAL AND ERROR — Breach of Contract Action — Facts Stipulated — Written Documents — Appellate Court — Not Bound — Trial Court Determination. Since, in breach of contract action, the issues on appeal concern stipulated facts and construction of two written employment contracts, the Court of Appeals is not bound by the trial court's determination of the issues.
2. CONTRAS — Teachers — Not Obligated — Accept Offer — Having Accepted — Waived Rights — Previous Contract. College teachers were not obligated to accept offer of summer employment tendered by college; but, having accepted, they were bound by the terms of the resulting contract; and, by their acceptance, they waived any rights they might have had under previous teaching agreement entered by them and the college.
3. Consideration — Not Lacking — Promise of Compensated Employment — Exchange For — Promise of Services. Since, under second contract entered by teachers and college, the teachers received summer employment to which they were not previously entitled and which college was not required to provide under original contract, and since the second contract contained a promise of compensated employment in exchange for the promise of services, there was no lack of consideration for the second contract.
Appeal from the District Court of the City and County of Denver, Honorable Saul Pinchick, Judge.
Martin P. Miller, for plaintiffs-appellees.
Duke W. Dunbar, Attorney General, John P. Moore, Deputy, Robert L. Hoecker, Assistant, for defendants-appellants.
Division II.
Plaintiffs-appellees C. A. Bursiel, C. E. Angeletti and R. C. Clifton (together with Local 2042 of the American Federation of Teachers, which withdrew from the case prior to trial) brought this action against appellants, Metropolitan State College and its governing board, to recover damages resulting from an alleged breach of the appellees' employment contracts with the College. The College appeals from a judgment entered in favor of plaintiffs following a trial to the court. We reverse.
All of the pertinent facts were stipulated to by the parties. The controversy involves the interpretation and effect of contracts under which each of the plaintiffs was employed as an assistant professor by the College. Two contracts were signed by each professor. The first was executed in April 1970, and provided, as pertinent here:
"You are hereby notified of your reappointment to the faculty of Metropolitan State College as assistant professor . . . for the academic year (fall, winter, and spring quarters) at the salary of . . . effective September 1, 1970 . . . . If you are appointed to the summer quarter, your contract for this service will be at a rate of 28 percent of your previous academic-year salary or a proportionate amount thereof for the time of services rendered." (Emphasis supplied.)
Each of the professors taught for the three specified quarters and on April 9, 1971, the College sent to each a "Notice of Assignment and Salary for the Summer of 1971," which, if and when accepted, would constitute the contract of employment for the summer quarter. Because the Colorado Legislature did not appropriate sufficient funds to the College, the salary set forth in each of these documents was at a rate of 25%, instead of 28%, of the previous salary. These "Notices" provided:
"Your are hereby notified of your assignment to a teaching position at Metropolitan State College at a salary of . . . for the Summer Quarter of 1971. This assignment is contingent upon the appropriation for the 1971-72 fiscal year received by the Colorado General Assembly, and upon there being in existence by May 31, 1971, a bona fide contractual arrangement between you and the College for employment during the 1971-72 academic year . . . .
By signing this contract, you waive any right you may have under an academic year contract to payment at a rate of 28 percent of your previous academic year salary . . . ."
Each of the professors signed the document below the following, "I hereby accept the assignment as set forth above and agree to the conditions thereto appertaining." The plaintiffs then taught for the summer quarter and were paid at the 25% rate. The parties agree that under the original 1970 contract the College was not obligated to appoint any of the plaintiffs to a summer job and plaintiffs were not obligated to accept employment even if tendered.
The trial court found that, as a matter of law, the later, 1971, contract was without legal consideration and therefore the waiver was invalid and not binding on plaintiffs. The court then found, as a matter of law, that the first contract "required only a condition precedent to complete the contract; namely, the acceptance by the plaintiff[s] of summer employment," and further, that the plaintiffs having accepted the employment must be paid at the 28% rate. Judgment was then entered for the difference between the amount paid to plaintiffs at the 25% rate and the amount that would have been paid under the higher rate.
[1] The issues concern stipulated facts and construction of the two written employment contracts. Therefore, we are not bound by the trial court's determination. Meier v. Denver U.S. National Bank, 164 Colo. 25, 431 P.2d 1019; Helmericks v. Hotter, 30 Colo. App. 242, 492 P.2d 85.
[2] Assuming the provision in the original contract relative to summer employment be deemed to give rights to the plaintiffs and impose obligations on the defendants, these rights and obligations could be and here were modified by the parties by mutual consent. McKay v. Fleming, 24 Colo. App. 380, 134 P. 159. In McKay the plaintiff entered into a contract for the purchase of land from the defendant. Defendant advised plaintiff he couldn't perform because he owned only a half interest in the property. The parties thereafter entered into a new contract pursuant to which plaintiff acquired title to the property at a higher price than that agreed to in the first contract. After performance of the second contract was completed, plaintiff sued to recover damages based on breach of the first contract. In holding defendant not liable, the court said:
"The plaintiff, by making the second contract of purchase with the defendant, lost all right to rely upon the first contract, either to enforce it as a contract of sale or to rely upon it in a suit for damages for a breach thereof . . . if plaintiff elected to sacrifice his rights under the first contract, in order to make certain his purchase of the property, he ought not thereafter to complain. He was not compelled to do this, except in the sense that he was compelled to choose this horn of the dilemma. This was not duress under the law, nor would it enable plaintiff to avoid the effect of the second contract . . . . When plaintiff found the defendant unable, and thereby unwilling, to perform the first contract, he could have rested upon his rights under the first contract, and could have brought suit for the specific performance thereof, demanding that defendant convey his half interest, and abatement or compensation for the failure to convey the other half, or, for damages for its breach; or he could have done what he did; but he could not do what he did and still rely upon his right to a suit for damages under the first contract."
The court continued:
"A waiver of performance under the first contract arose, and, as the second contract was literally performed, this would include a waiver of any suit for damages for non-performance thereof, unless it was specifically agreed, at the time, that such subsequent contract should not be so considered."
In the instant case plaintiffs were not obligated to accept the offer of summer employment tendered by defendants, but, having accepted, they were bound by the terms of the resulting contract, and, by their acceptance, waived any rights they might have had under the previous agreement.
[3] There was no lack of consideration for the second contract. The parties agree that under the original contract the college was not obligated to offer employment and the plaintiffs were not obligated to accept employment, even if tendered. Under the second contract, plaintiffs received employment to which they were not previously entitled and which defendants were not required to provide under the original contract. In the contract for summer employment there was the promise of compensated employment in exchange for the promise of services. This is valid consideration for the modification. Gertner v. Limon National Bank, 82 Colo. 13, 257 P. 247; McKay v. Fleming, supra.
In view of the above determination, consideration of the trial court's second conclusion is unnecessary.
The judgment is reversed and the cause remanded with directions to dismiss the complaint.
JUDGE ENOCH and JUDGE PIERCE concur.