167 Pa. Super. 313 | Pa. Super. Ct. | 1950
Opinion by
On June 16, 1947, Matevish and the School District of the Borough of Ramey executed a written contract whereby Matevish was to supply automobile transportation for pupils of the district during the school years of 1947-8, 1948-9, and 1949-50. He rendered service during 1947-8, and was paid for it. Alleging breach of the contract, the school district cancelled it on September 8,1948. Matevish sued to recover as damages the profits he would have made had he been permitted to perform the contract during 1948-9 and 1949-50. The jury returned a verdict for him for $2058. Defendant moved for judgment n. o. v. and a new trial. The court below awarded a new trial and from that order Matevish appealed. It refused defendant’s motion for judgment n. o. v. and from that order the school district appealed. The appeals were argued together and the decisions' will be embraced in one opinion.
Many provisions of the contract are not presently material. The principal controversy revolved around plaintiff’s engagement to furnish a 1947 bus with a new chassis and body. The contract provided: “14. This contract shall not be transferred. No other vehicle or operator may be substituted without the written consent of the Board. ... 19. This agreement shall terminate on the 30 day of June, 1950 unless terminated earlier for cause or by mutual consent of the parties hereto. 20. Any violation of the terms of this contract may, at the option of the Board, operate as a forfeiture thereof.” (Emphasis added.)
I. Plaintiff did not furnish a 1947 bus. He used a 1941 bus, without the written consent of the board. It was this circumstance, along with others, that caused the board to cancel the contract. In an amended complaint plaintiff alleged that at the time the rate of compensation was changed it was also agreed that plaintiff could furnish a used, instead of a new 1947, bus,
II. Plaintiff testified that he negotiated with James Smith, secretary of the board, and with him orally agreed that the provision requiring a 1947 bus be eliminated from the contract. Smith denied the agreement. The trial judge did not permit him to testify that he was without authority to bind the board. Yet he submitted to the jury the question of Smith’s authority, and whether he had agreed on behalf of the board to modify the written contract by a parol agreement. This was error, and the finding of the jury is without foundation in law. “It is well established that an appointment [or a contract] by a School Board cannot be enlarged, diminished, supplemented or in any manner changed by evidence extraneous from the minutes, or by the actions or declarations of the officials of the School District: Commonwealth ex rel. Hetrick v. Sunbury School District, 335 Pa. 6, 9, 10, 6 A. 2d 279, 281; Potts v. Penn Township School District, 127 Pa. Superior Ct. 173, 179, 193 A. 290, 293; Strine v. Upper Merion Township School District, 149 Pa. Superior Ct. 612, 619, 27 A. 552, 555”: Pittsburgh School District Appeal, 356 Pa. 282,
Moreover, had Smith been expressly authorized to negotiate for a modification of the contract, the school district would have been bound only if it approved the modified contract. To modify a contract requires a new meeting of minds, and a modified instrument is tantamount to a new contract. As such it required approval of the board in the manner provided by the School Code, §403, supra, and the approval of the Department of Public Instruction.
III. Plaintiff argues that acceptance of the 1941 bus during the first year obligated the school district to accept the same bus during the two succeeding school years. In his charge the trial judge referred to the doctrines of substantial performance, waiver and estoppel. Plainly, estoppel does not apply; payments made by the school district for the service rendered did not estop it from requiring strict performance of the contract during succeeding years. Com. ex rel. Ricapito v. Bethlehem School Dist., supra; McCandless v. Summit Twp. School Dist., 55 Pa. Superior Ct. 277; Waltman v. Albany Twp. School Dist., supra; Walters v. Topper, 139 Pa. Superior Ct. 292, 11 A. 2d 649; School Dist. of Dennison Twp. v. Padden, 89 Pa. 395. Nor is the case controlled by the principles of substantial performance; for as the term indicates, it refers to past, not future, performance.
The school district invoked the forfeiture clause or, more accurately, its right to rescind, since forfeiture usually involves deprivation of something previously owned. 3 Williston on Contracts, §769. The clauses quoted above authorize rescission for cause or forfeiture for any violation of the contract. They are sufficiently broad to cover substitution of a 1941 bus for the stipulated 1947 bus. The question is: Having accepted the 1941 bus for the first school year could the school district cancel the contract for the succeeding two years? Did its indulgence during that period deprive the school district of its rights to declare a forfeiture or rescission?
The answer is supplied by Restatement, Contracts, §300: “Acceptance of defective performance of a condition or promise does not operate as an assent to receive further similar performance except where successive acceptances of such performance justify the belief that performance of that character is satisfactory, and in
The undisputed facts, consisting of letters by the board whose receipt is admitted, clearly establish that the school board demanded literal compliance with the contract and afforded plaintiff reasonable time in which to comply. Passing earlier expressions of dissatisfaction with the services rendered, on July 7,1918, the board by letter requested plaintiff to return his bus contract so that it might be terminated by mutual consent. On July
IV. It appears that plaintiff did not receive the notice of cancellation until September 11, 1948, and continued to render service until that date. The school district paid for the four additional days. It is not contended that thereby the school district receded from its
We have confined our attention to plaintiff’s failure to supply the 1947 bus, and excluded consideration of other numerous complaints of the board as to the character of the service and violations of the contract. Having decided the most vital question against plaintiff, decision upon the other complaints and the numerous trial errors is unnecessary.
Y. The conclusions are: (a) Plaintiff’s alleged parol agreement imposed no liability upon the school district; and (b) his written contract was rescinded for good cause, after timely notice. Since no legal liability rests upon defendant, there are no factual issues for determination by a jury, and the award of a new trial was an abuse of discretion. Kuhler v. Harrison Construction Co., 361 Pa. 100, 62 A. 2d 853. Cf. Streilein v. Vogel, 363 Pa. 379, 69 A. 2d 97, where it appeared (p. 385) that there were questions of negligence and contributory negligence for determination by the jury.
The order refusing judgment n. o. v. and awarding a new trial is reversed, and judgment is here entered for the defendant.
One of the reasons assigned for the award of a new trial was the exclusion of the minutes from the evidence.
“If the Department of Public Instruction approved the transportation as to methods and means and the contracts provided therefor, the Commonwealth will pay annually the amounts provided for by this act to the school district furnishing such transportation”: Act of May 29, 1945, P. L. 1112, §5(f). Without approval the school district is not reimbursed for its transportation expenditures. Alteration of the contract without the consent of the Department would result in a loss of the district’s share of the appropriation. According to the testimony this amounts to at least 90% of the expenditure, a sacrifice which no school district would voluntarily make.