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Dewey v. Union School Dist.

Supreme Court of Michigan

April 23, 1880, Submitted ; April 30, 1880, Decided

No Number in Original


 [*481]   [**646]  The plaintiff was regularly hired by the district to serve as teacher in its public schools for ten months for $ 130 per month. He entered on his duties on the 2d of September and continued up to the 10th of December, at which time the district officers closed the schools on account of the prevalence of small-pox in the city, and kept them closed thereafter for the same reason until the 17th of March. They were then re-opened and the plaintiff resumed his duties. He was subsequently [***3]  hired for the next school year, and his compensation was increased $ 100. The district refused to pay him for the period of suspension, and I'm brought this action to recover it.  [*482]  The claim was resisted on two grounds: First, that on the second hiring it was mutually agreed that the addition of $ 100 to his compensation for incoming service should stand and be allowed and accepted in full satisfaction of all claim for pay during the time in question; and second, that the suspension was the effect of an overruling necessity, or in other words, the act of God, and that all parts of the contract were suspended for the time being.

The circuit judge submitted to the jury both questions in  [**647]  a very clear manner, and instructed them to find against the plaintiff in case they were satisfied the alleged compromise was in fact entered into; or in case they should find that the small-pox was so prevalent that it became obligatory on the board to close the schools as a necessary step to prevent the spread of the disease and save human life.

The jury returned a verdict in favor of the district. But we cannot know with legal certainty whether they determined only one of these [***4]  questions in favor of the district, or whether they so determined both, and of course if one only was so decided it is impossible to say which one. The evidence on the compromise was conflicting, and as it appears in the record the advantage was with the plaintiff. Still if no other ground of defense had been laid, the verdict must have been conclusive. As just explained it is not so now.

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43 Mich. 480 *; 5 N.W. 646 **; 1880 Mich. LEXIS 850 ***

Franklin S. Dewey v. The Union School District of the City of Alpena.

Prior History:  [***1]  Error to Alpena. Submitted April 23. Decided April 30.

Disposition: The judgment must be reversed with costs and a new trial granted.


schools, suspension, hired, act of god, expediency, misfortune, prevalence, questions, small-pox, disease, teacher, pupils, spread