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July 20, 1950



Clarence R. Kramer, Clearfield, for School Dist. of Borough of Ramey.

D. Edward Chaplin, Dan P. Arnold, Chaplin & Arnold, Clearfield, for Matevish.

Before Rhodes, P. J., and Hirt, Reno, Dithrich and Ross, JJ.

Author: Reno

[ 167 Pa. Super. Page 315]

RENO, Judge.

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.)

[ 167 Pa. Super. Page 316]

As first drawn the instrument provided plaintiff's compensation at $15 per day. It was approved by the county superintendent of schools, who forwarded it to the Department of Public Instruction. The department declined to approve unless the compensation was reduced to $13 per day. Plaintiff agreed to that figure; the contract was resubmitted and approved; and for the first school year plaintiff charged and was paid $13 per day. Although execution of the contract was admitted, plaintiff was required to prove the minutes of the meeting at which its execution was authorized, for the action of the board is the basis of the school district's liability. Parnell v. School Board of Clymer Borough, 99 Pa. Super. 281; Waltman v. Albany Tp. School Dist., 64 Pa. Super. 458. He failed to do so, and when the school district offered to prove the minutes, the trial judge for an unfathomable reason rejected the offer.*fn1 However, the uncontradicted testimony is that the board approved the written contract, in accordance with the School Code of May 18, 1911, P.L. 309, § 403, 24 P.S. § 334, which provides: 'The affirmative vote of a majority of all the members of the board of school directors * * *, duly recorded, showing how each member voted, shall be required in order to take action on the following subjects: -- * * * Entering into contracts of any kind, including the purchase of fuel or any supplies, where the amount involved exceeds one hundred dollars.'

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,

[ 167 Pa. Super. Page 317]

    and averred 'that the failure to make said change [in the written contract] in the type of bus required to be furnished by the plaintiff was the result of fraud, accident or mistake upon the part of the defendants.' The requirement for a 1947 bus was a material provision of the contract, as is evidenced by the prohibition against substitution without written consent, and under Gianni v. Russell & Co., Inc., 281 Pa. 320, 325, 126 A. 791, 792, only fraud, accident or mistake, form the 'basis for admitting parol evidence to set up an entirely separate agreement within the scope of a written contract * * *.' Fraud, accident or mistake must be established by clear, precise and indubitable proof. Humphrey v. Brown, 291 Pa. 53, 139 A. 606. Evidence conforming to that standard was not offered, and the question was not submitted to the jury.

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; ...

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