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Sandry v. Brooklyn Sch. Dist.

Supreme Court of North Dakota

April 4, 1921, Opinion Filed

No Number in Original


 [*445]   [**689]  BIRDZELL, J. This is an appeal from a judgment for $ 775 in an action upon four transportation contracts. The plaintiff brought action in his own right upon one of these contracts and as an assignee of three others. The contracts cover the conveyance of the teachers and pupils of the defendant school district for the period of nine months beginning September 23, 1918. They prescribe the routes of travel and the compensation of each driver. The school was open two weeks in September and October of 1918, when it was closed on account of the epidemic of influenza, and did not reopen until January 3, 1919. The [***3]  drivers performed under the contracts during the time the school was open, and were paid for their services according to the  [*446]  contract rate. They were not paid, however, for the period during which the school was closed. This action is brought to recover the stipulated compensation as upon a performance of the contract during the thirteen weeks the school was closed.

The trial court instructed the jury that under the written contract the drivers would be entitled to recover the full amount stipulated as compensation, if they at all times held themselves in readiness to perform, and were prevented from performing by the action of the board in closing the school; that it would make no difference in this respect whether the school was closed by the order of the board of health on account of the epidemic; that the method of avoiding liability upon the contract for this period would have been by cancelation, and that the contract had not been canceled. The court also left it to the jury to determine whether or not, under the evidence, the parties themselves had placed a  [**690]  contrary interpretation upon the contract. This instruction was occasioned by evidence to the [***4]  effect that at other times when the school had been closed for short periods the board, in compensating the drivers, deducted for the days the school was so closed. There was evidence that the drivers had received compensation on this basis without objection, but it was explained that the matter was of too trivial a nature to warrant any attention being paid to it.

In our opinion this case turns upon the legal interpretation of the contracts. They are substantially the same, being upon printed forms. The following may be taken typical:

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47 N.D. 444 *; 182 N.W. 689 **; 1921 N.D. LEXIS 118 ***; 15 A.L.R. 719


Prior History:  [***1]  Appeal from an order of the District Court of Williams County, Leighton, J.

Reversed and dismissed.

Disposition: Judgment reversed and action dismissed.


drivers, contracts, teacher, school board, school district, epidemic, parties, breach of contract, conveyance, route