152 Ark. 27 | Ark. | 1922
(after stating the facts). It is settled in this State that no contract can be made by a school board except at a board meeting, and that no meeting can be held unless all the directors are present, or the absent member or members have been duly notified. It has been further held that notice of a regular meeting is, however, unnecessary where regular meetings are held at stated times fixed by the board. School District v. Bennett, 52 Ark. 511; Rice v. School District No. 20,109 Ark. 125; and School District No. 56 v. Jackson, 110 Ark. 262, and.cases -cited. This is in application of the general rule that where persons are authorized by statute to perform a public service as a board or as an organized body which requires deliberation, they must be convened in a body that they may have the advice of every member, although they may not all be of the same opinion as to the matter in hand.
"While there is in the record in the present case a contract signed by Van Dyke and the president and secretary of the Dierks Special School District employing him as architect in the construction of a new school building, it is not shown that this contract was authorized at a regular meeting of the school board, or a special meeting where all the directors were present, or where each of them had been duly notified of the meeting. In the application of the rule above stated, it is conceded by counsel for plaintiff, Yan Dyke, that he is not entitled to recover on the contract just referred to, but it is -claimed by him that the contract in question was ratified by the members of the school board, and that therefore he is entitled to recover upon it just as if it had ¡been legally executed in the first instance.
The case was submitted to the jury upon the question of ratification of the contract by the members of the school board. As just stated, Van Dyke bases his right to recover for his services as architect in the construction of the school building upon the ratification of his contract by the members of the school board. Therefore, at his request, the court gave to the jury, over the objections of the defendant, the following instruction:
“No. 3. Although you may find from the evidence that the president and secretary had no authority to sign the contract sued on for and in behalf of the board of directors, but in case you find they did do so, and if you further find that said board at a meeting when all its members were present or had notice of the meeting, accepted the plans and specifications provided for in said contract and constructed its building in accordance with said plans and specifications and knowingly permitted the plaintiff to supervise the work on said building for several months, then you are instructed that defendant can not repudiate its obligations contained in said contract. ’ ’
Counsel for the defendant objected to this instruction generally and also specifically on the ground that there was no proof that the board ever accepted the plans and specifications provided for in said •contract. In this contention we think counsel is correct. The record shows that on the 4th day of September, 1918. at a meeting of the school board in which four members were present, the board voted to receive the contract presented by the architect, V. B. Van Dyke, and instructed the president and secretary of the school board to sign the same, and that the president and secretary did so. There is nothing to show, however, that this was at a regular meeting of the school board, or that all the members of the board were duly notified to be present at it. It will be noted that two of the members were absent, and it is not shown that they received any notification whatever to be present. This is the only evidence in the record from which to find that the board of directors of said special school district ratified the contract which its president and secretary made with Van Dyke, and this testimony is not sufficient to show a ratification of the contract. As we have already seen, such a contract could only be made or ratified by the board at a regular meeting, or at a call meeting of which all the members of the hoard were present or had been given due notice.
But counsel for the defendant insists that the language complained of in the instruction was an amendment to the instruction at the instance of counsel for the plaintiff, and that therefore the plaintiff is not now in an attitude to complain. We have examined the record carefully in this respect, and find that counsel are mistaken in their contention. The record shows that counsel for the plaintiff objected generally to the instruction and saved his exceptions to the ruling of the court in giving it. The record further shows that counsel for the plaintiff specifically objected to the instruction on the ground that there was no proof that the board ever accepted the plans and specifications. He stated that the board as such never convened in session with power to act, and that a special or called session in which each member was present or had notice was never had. Again he insisted that there was no proof that such a board meeting ever passed upon the plans and specifications, accepted them or knew anything about them. Thus it will be seen that counsel for the plaintiff made in the court below the very objection to the instruction which he is making here now. It will be readily seen that the instruction was misleading, and should not have been given. The iury might have found under it that the board had ratified the contract made by some of its members with Van Dyke and signed by its president and secretary, and based their verdict upon such a finding. There being no testimony upon which to support the finding, the instruction was abstract, and necessarily prejudicial to the rights of the defendant. We can not know whether the jury based its verdict upon a finding that the board had ratified the contract with Yan Dyke as submitted' to it by this instruction, or whether its finding was (based upon the ratification by all the individual members of the board as submitted to them by other instructions given by the court at the request of the defendant. The giving of the instruction, therefore, constitutes prejudicial error which calls for a reversal of the judgment.
Again, it is insisted by counsel for the defendant that the judgment should be reversed for the error of the court in refusing to allow certain testimony offered to prove by the secretary of the school board and three other members of it that, after the contract between the school board and Van Dyke had been prepared and just before it was signed, they had an understanding which was not reduced to writing, that,if at any time Yan Dyke’s services became unsatisfactory and he was unable to get along with the contractor, he would quit. This court has held that parties to a written contract may, subsequent to its execution, rescind it in part or in toto and substitute a new oral agreement therefor. Weaver v. Emerson-Brantingham Implement Co., 146 Ark. 379. It is equally well settled, however, that a written contract can not be varied or modified by parol evidence.
In the present case the offered testimony shows that the change in the contract was made before it was signed. Therefore the court was correct in excluding it because the contract in such a cáse would be the last expression of the agreement between the parties.
The court was right in excluding the offered evidence for another reason. The theory of the defendant is that the alleged contract never became binding because it was not properly executed. If the contract never became binding because it was not executed pursuant to authority given at a regular board meeting or at a call meeting of which, all the members were present or had due notice, the alleged modification which occurred at the same time would be invalid for the same reason. Therefore the court did not err in excluding the offered testimony from the jury.
For the error in giving instruction No. 3 asked by the plaintiff, the judgment will be reversed, and the cause remanded for a new trial.
