December 6, 1950 —
January 9, 1951.
APPEAL from a judgment of the circuit court for Buffalo county: ARTHUR W. KOPP, Circuit Judge, Presiding. Reversed.
Edwin Larkin of Mondovi, for the appellant.
For the respondent there was a brief by Weinandy Schlosstein of Cochrane, and oral argument by B. H. Schlosstein.
Plaintiff brought an action for breach of a contract to teach for the year 1948-1949. At the close of the testimony the court ordered a directed verdict and upon such verdict entered judgment for the defendant. Plaintiff appeals.
Plaintiff had taught the Sisson school, being the graded school of Joint School District No. 5 in the town of Modena, Buffalo county, under contract in the year 1947-1948. When plaintiff entered into the discharge of her duties in 1947, O. J. Sohrweide, county superintendent of schools of Buffalo county, forwarded to the state superintendent of schools an application previously signed by plaintiff for a one-year permit. This permit was issued on September 1, 1947, was received by Sohrweide on September 3d, and remained in his possession until time of trial. Plaintiff taught satisfactorily during 1947-1948.
On April 7, 1948, the school board met in the Sisson schoolhouse with Mrs. Nyre and entered into a contract to teach for the year 1948-1949. The contract was reduced to writing except for dates of performance, which were left blank until the superintendent of county schools should determine the opening of the term. It was understood that these dates would be filled in when known, and their absence from the contract is immaterial.
On May 15, 1948, Mrs. Nyre made application for a permit to teach Sisson school for the year 1948-1949, which application she again deposited with the county superintendent together with a two-dollar fee to be transmitted to the state superintendent. The county superintendent testified that since the law authorizes hiring of teachers with temporary permits only upon proof that a duly certified teacher is not available for the school involved, he kept plaintiff's application in his possession until the beginning of the term.
There is no dispute that plaintiff's 1947 permit expired July 1, 1948.
On July 26, 1948, by vote of the members of the school districts and action of the respective boards, there was a consolidation from which was formed Joint School District No. 1 of the towns of Modena, Canton, Gilmanton, and Alma in Buffalo county. The new school district contained three school buildings, Sisson, Modena, and Rockwell. Rockwell schoolhouse was sold and removed by the purchaser. The new board decided to close Sisson school and operate only the Modena school.
In July the school board called upon plaintiff and requested a release of her contract. There was some conversation about hiring the plaintiff for a hot-lunch program, to which she responded that she had been hired to teach, not to cook, and thought that the suggestion was made in jest.
In the middle of August plaintiff received a letter from the Modena board suggesting that she seek a teaching job elsewhere. At the commencement of the term she presented herself to the Modena school but was denied permission to teach.
Since sec. 40.19 (1), Stats., provides that ". . . No teaching contract with any person not legally authorized to teach the named school or subject shall be valid; and all teaching contracts shall terminate if, and when, the authority to teach terminates," the trial court directed a verdict in favor of the defendant upon the theory that if plaintiff had a valid contract in April it terminated in June when plaintiff's 1947 permit to teach expired.
This would have been sound if renewal of plaintiff's permit had been denied. There was no dispute that her application for permit for the year of the contract here in question was given to the county superintendent of schools, nor that a permit would have been issued to her by the state superintendent if the application had been transmitted to him. The failure of the county superintendent to follow his usual procedure, which normally resulted in issuance of a permit, was due to defendant's cancellation of plaintiff's contract. To permit defendant to escape liability on the contract with plaintiff because of her failure to obtain a permit, when the unwarranted cancellation of her contract by the school district made it impossible for her to procure such permit, would be an injustice.
Counsel also contends that plaintiff is not entitled to recover because she did not present herself at the Sisson school as her contract required, but rather tendered her services at the Modena school. There is nothing to the point. It was common knowledge that the consolidated district was operating only the Modena school and that the Sisson school was closed. The school districts had a right to consolidate and to operate only one school in the interests of economy. The districts entering into the consolidation, however, cannot thereby escape obligations legally incurred prior to the consolidation.
We conclude that the trial court erred in directing a verdict for the defendant. Since the question of whether plaintiff failed to accept similar employment and reduce damages which she sustained is properly a jury issue, it will be necessary to have a new trial.
By the Court. — Judgment reversed and cause remanded for a new trial.
BROADFOOT, J., took no part.