27 Colo. App. 63 | Colo. Ct. App. | 1915
The plaintiff, Ryan, in the lower court, had judgment for costs, in his action against the Mineral County High School District for damages for the breach of a contract which he alleged in his complaint had been made between him and the said district, whereby he had been employed as principal of the said High School. He sued out this writ of error on the ground that he ought to have recovered more than his mere costs in the lower court. Cross errors are assigned on the findings of the lower court, that a contract was made employing plaintiff as principal of the High School, and as to the finding against defendant for the costs.
The defendant answered by general denial, and by a further plea that plaintiff could have received the same sum for like services, as superintendent of the grade school, for the same time, in the same town, which the lower court treated as a plea in mitigation of damages. The trial was without a jury. The lower court found that he had been employed, that he was damaged by breach of the contract in the sum of $1200, and allowed in mitigation of damages the sum of $1200, which he might have received as superintendent, aforesaid, and entered judgment for his costs only. The plaintiff contends that he could not have obtained employment as superintendent, aforesaid, because the offer of such employment was upon the condition that he would release all claims that he might have against the defendant by reason of its breach of the contract sued upon herein; and he contends, further, that he was not required under the law to accept such employment, because it was of a lower grade than the principalship of the High School. He alleged damages in the sum of $2500, 'and testified that he was damaged, in addition to the loss of salary of $1200
It was not error to find that plaintiff was employed, and that a breach of the contract followed. It was undisputed that plaintiff applied for the place; that the application was taken up and considered ■ at a meeting of the full board of five members, at which a motion was made that plaintiff be employed, and a motion that another be' employed, neither applicant being present, and the plaintiff received three votes, and the other applicant two, and that the board then adjourned; that the secretary notified the plaintiff by letter that he had been employed; that he accepted the employment before the board took further action; that the minutes of the aforesaid meeting of the board, in addition to a statement of the vote, aforesaid, contained the following: “Three votes were cast for Professor Lafayette Ryan and two for Mr. J. T. Franklin. Mr. L. Ryan b«ing elected, the secretary was instructed to notify him of his appointment. There being no further business, the meeting was adjourned.” .On the other hand it is conceded that within ten days after this meeting another meeting of the full board was held, at which the former vote was reconsidered and another vote taken, plaintiff receiving two votes and the other applicant three, and that the other applicant, on motion, was then declared elected, and his salary fixed at $1331/3 a month for nine months; that neither the salary nor the term was mentioned in the application,
It is contended that, under these facts and circumstances, the lower court should have held that there was no contract of employment (1) because the vote at the first meeting amounted to nothing more than the expression of a choice between two applicants; and (2) because neither the application nor the action upon it by the board contained any reference to the salary or the term of service.
As to the first ground of this contention, it is clear that if the application, or the action thereupon, had set the salary and the term, a legal contract would have been the result, if there was an intention to make'one. Now, eliminating the second ground, it is necessary to inquire as to the question of intention only. There was a plain offer, made to be acted upon, either by accepting or rejecting it; the offer was taken up and considered, a motion was made to
“One having applied to a school board for a position as teacher, and his application having been accepted, and he being elected by the board, it is not necessary to a completed contract that the board notify him of his election, or that he notify it of his acceptance.”
The intention and understanding of the parties is the vital issue here, and the contract relied upon should be considered with reference to the facts and circumstances relating thereto. Denison v. Vinalhaven, 100 Me., 136, 138, 60 Atl., 798. The lower court had the facts, the circumstances and the parties before it, and was, therefore, in a position to ascertain what the intention and the understanding was; and, having found that the contract was made with reference to such mutual understanding, it is not the province of this court in such instances to set aside such conclusion and substitute its own in the place thereof.
The same may be said as to the contention of plaintiff that the lower court erred in its finding as to the damages and the deduction in mitigation thereof. The undisputed facts on this question are that- plaintiff would have received the same sum for the same time in the same town if he had accepted the employment as superintendent of the grade school; that he refused such employment as superintendént of the grade school, because in order to obtain it he would have had to release his claim under the contract sued upon; that he incurred in expenses and losses, in his efforts to obtain other, employment, including the loss of the salary under the contract, a sum equal to the amount sued for. The
The lower court’s finding that plaintiff was damaged to the extent of $1200 only on account of the breach of the contract must be sustained unless it adopted and applied the wrong measure of damages, and as the court tried the case without a jury, and there were no instructions, it must be assumed that the correct rule was applied; in the absence of anything in the record to show to the contrary. Having held that the plaintiff could have obtained employment t as superintendent of the grade school in the same locality, as a matter of fact, the court probably adopted as the measure of damages the amount that plaintiff would have earned under the contract sued upon, and then deducted what he might have earned under the employment as superintendent of the grade school; and, from the findings, it is quite clear this was the rule adopted. This was a correct rule (26 Cyc., 1014) if we accept the premises, which are: (1) That plaintiff was obliged to release his claim under the contract sued upon and accept the grade school employment under such condition; (2) that the employment as superintendent was, substantially, of like character and grade as the employment in the high school; and (3) that the amount deducted in mitigation was the proper amount under the law and the facts.
As to (1), it is the law that if the plaintiff had been offered like employment, without any condition as aforesaid, and for like wages, in the same locality, before sustaining any injury by reason of the breach, he could not recover any damages other than nominal. 26 Cyc., 1013; 20 A. &
In the case of Sparta School Township v. Mendell, 138 Ind., 188, 37 N. E., 604, 607, a case relied upon by the plaintiff in error, the court states the rule in accordance with the views herein expressed in the following words: “The rule requiring the acceptance of other employment requires it to be tendered without conditions such as would be so injurious to the person as the yielding of a contract containing advantages for one with no value in it, or one stipulating for less per diem, and liable to be put an end to at any time.”
Therefore, the premises being accepted, the finding of the court, as to the damages and as to the amount allowed in mitigation thereof, was not error.
The defendant in error contends that plaintiff should not have recovered his costs, but this contention is without merit. The judgment of the lower court allowed $1200 damages for breach of the contract, and this carried with it the costs and the allowance of $1200 in mitigation of the damages left the costs undisturbed on the first finding.
The assignments by the plaintiff in error having been resolved against him, it is concluded that the lower court committed no reversible error in rendering judgment for the costs only, and the judgment is therefore affirmed.