
    Ward v. Board of Education of Harrison Township Rural School District, Gallia County.
    (Decided June 26, 1930.)
    
      Mr. R. M. Switzer, for plaintiff in error.
    
      Mr. Henry W. Gherrington, for defendant in error.
   Middleton, P. J.

The plaintiff in error, Ina A. Ward, who was the plaintiff below, and therefore will be referred to herein as the plaintiff, brought an action in the court of common pleas against the defendant, the board of education of Harrison township rural school district, to recover the sum of $960, claimed to be due her under a contract of employment to teach school, which contract was canceled by said board and the plaintiff thereby prevented from performing its terms and conditions. A jury was waived in the trial court, and, after that court heard the evidence, it rendered a judgment in favor of the defendant board.

The material facts in the case are not seriously disputed. It appears that on or about May 26, 1928, the plaintiff filed with the president of the defendant board an application for employment as teacher of a certain school in Harrison township, Gallia county. It further appears that on June 4 following, the defendant board at a meeting accepted the plaintiff’s application and employed her with other teachers to teach school in the several districts of said township, and that by the terms of the employment then so made, as entered upon the records of the board, it was provided that the teachers should sign a contract for such employment on or before 1 o’clock p. m. of the first Monday in July following, and, if such contract was not signed, the teachers so employed were to be considered “not hired.” It further appears from the evidence that on or about June 15 the clerk of the defendant board mailed to plaintiff a contract of employment for her to sign, which she received on June 18. This contract was retained by the plaintiff and not returned to the board until July 5, and in the meantime the board, at a meeting on July 2, employed another person in the place of the plaintiff to teach the school for which the plaintiff had been employed. The evidence shows that the plaintiff knew at the time she returned her contract to the board that the board had taken such action and another teacher had been employed in her place.

There are several defenses made to the claim of the plaintiff, but it becomes unnecessary to refer to them until the record establishes that the trial court under the evidence should have found that the plaintiff had a valid, subsisting, enforceable contract of employment with the defendant. We are persuaded from the undisputed facts in this case that she never had an enforceable contract against the board, and that the trial court, acting as a jury, might well have so found in arriving at its judgment in the case.

As before observed, the record of the board shows that the employment of teachers made by it on June 4 had a condition that the teachers then so employed, including the plaintiff, should sign a contract of employment on or before 1 o’clock p. m. of the first Monday in July following, which was on the 2d day of said month, and that, upon the failure of any so to do, the board should consider them “not hired.” The contract of the plaintiff was received by her on June 18, and was not returned by her until July. 5. This, of course, was not a compliance on her part with the terms under which the contract was to be accepted as understood by the board. It is contended, however, that she had no notice of the condition which required her to sign the contract on or before July 2. That contention may be conceded, but, so long as the contract remained in her hands, or under her control, there was no acceptance on her part and no compliance by her with the terms of her employment, and the most that she may claim under such facts is that the time within which and during which she held the contract was a reasonable time, and that she acted with dne diligence in signing and returning the contract to the board. It is a primary rule that a party contracting by mail, as she did, when no time limit is made for the acceptance of the contract, shall have a reasonable time, acting therein with due diligence, within which to accept. In New v. Germania Fire Ins. Co., 171 Ind., 33, 85 N. E., 703, 706, 131 Am. St. Rep., 245, 250, this rule is well stated as follows: “It is true that where an offer is made by mail * * * in the absence of notice of revocation * * * that the writer continues willing to contract down to the time that the other party may, with due diligence, accept the proposition.”

See, also, cases cited in 11 Century Digest, Column 89, “Contracts,” Section 80.

This rule does not permit the accepting party to sign a contract at his pleasure. It does not give him the unqualified right to hold the contract, as the plaintiff did in this case, for seventeen days; nor does it allow him undue, delay to determine whether another contract in contemplation might be more advantageous to him if it could be obtained. The evidence in this case may have moved the trial court to find that the delay of the plaintiff was due to her pending application before another board for another school. The evidence at least tends strongly to show that she did not return her contract until the other outstanding application was denied.

In a note to Maclay v. Harvey, 32 Am. Rep., at page 51, the rule is thus stated: “If any undue delay or failure of delivery of the letter of acceptance is caused by the fault of the accepting party, there is no contract.”

Manifestly the question of whether or not the plaintiff had acted with due diligence was a question for the jury, as was also the question whether the board, meeting again on July 2, and then having no return from the contract offered to the plaintiff, was justified in revoking its offer and employing another in her place. If, as we have observed, the trial court reached the conclusion that the plaintiff did not act with due diligence, and that under the admitted circumstances of the case the board was not at fault in revoking its offer to employ her, we regard the evidence as sufficient to support such finding and determination of the rights of the parties. This conclusion on the part of this court makes it unnecessary to consider any of the remaining claims of the parties to this action.

Judgment affirmed.

Matjck and Blosser, JJ., concur.  