
    ERICKSEN v TAWAS AREA SCHOOL DISTRICT
    Docket No. 31054.
    Submitted March 8, 1978, at Lansing.
    Decided August 7, 1978.
    Robert H. Ericksen and two other teachers brought this class action on behalf of the members of the Tawas Education Association against the Tawas Area School District and Board of Education in Iosco Circuit Court to recover two and one-half days salary which had been deducted from their final paychecks pursuant to a strike settlement agreement between the parties. In the trial court, plaintiffs argued that the language of the agreement, "The scheduled time missed will be prorated and deducted from salary (2-1/2 days deduction)”, was ambiguous and called a witness to resolve any ambiguities through parol evidence. Defendants’ objection was sustained by Allan C. Miller, J., on the ground that there was nothing ambiguous in the language of the contract. Judge Miller found, at the end of plaintiffs’ proofs, that no cause of action had been made out and dismissed the case. Plaintiffs’ appeal hinges on their argument that Judge Miller erroneously excluded the proffered parol evidence. Held:
    
    The language of the strike settlement agreement is clear and unambiguous because the agreement specifies exactly what is meant by "scheduled time missed” by stating "2-1/2 days”. Parol evidence would not tend to show that ambiguity existed nor that ambiguity may exist; therefore, the proffered evidence was inadmissible.
    Affirmed.
    1. Evidence — Extrinsic Evidence — Contracts—Ambiguity—Intent —Construction.
    Extrinsic evidence is admissible to prove the existence of ambiguity or to indicate the actual intent of the parties where ambiguity may exist in a contract; when ambiguity exists in a contract, extrinsic evidence is admissible to indicate the actual intent of the parties as an aid in the construction of the contract.
    
      References for Points in Headnotes
    [1-4] 30 Am Jur 2d, Evidence §§ 1069-1074.
    The parole evidence rule and admissibility of extrinsic evidence to establish and clarify ambiguity in written contract. 40 ALR3d 1384.
    Modern status of rules governing legal effect of failure to object to admission of extrinsic evidence violative of parol evidence rule. 81 ALR3d 249.
    
      2. Contracts — Language—Ambiguity.
    Ambiguity cannot exist where the language of a contract is clear and specifies exactly what is meant.
    3. Evidence — Parol Evidence — Contracts—Ambiguity—Admissibility.
    Proffered parol evidence is inadmissible where it would not tend to show that any ambiguity existed in a contract nor that ambiguity may exist.
    4. Evidence — Parol Evidence — Contracts—Ambiguity—Admissibility.
    Parol evidence may be admissible even though no ambiguity exists in a contract where there is no inconsistency between the proffered parol evidence and the written contract language; however, this rule is inapplicable where the proffered evidence is inconsistent with and contrary to the written language.
    
      Foster, Swift & Collins, P. C. (by Karen Bush Schneider), for plaintiffs.
    
      Thrun, Matsch & Nordberg (by Harry J. Zeliff), for defendants.
    Before: D. E. Holbrook, Jr., P. J., and Allen and S. Everett, JJ.
    
      
       Circuit judge, sitting on the Court of Appeals by assignment.
    
   S. Everett, J.

Plaintiffs brought this class action breach of contract suit on behalf of the members of the Tawas Education Association who were employed by defendants as teachers during the 1972-1973 school year. Plaintiffs sought to recover two and one-half days’ salary which had been deducted from their final paychecks. The trial court, sitting without a jury, found, at the end of plaintiffs’ proofs, that no cause of action had been made out and dismissed the case. Plaintiffs appeal by right.

Plaintiffs’ appeal hinges on their argument that the trial court erroneously excluded parol evidence.

The complained of salary deductions were purportedly made pursuant to a strike settlement agreement between the parties which reads as follows:

"It is mutually agreed that neither party will take or initiate any disciplinary action of any kind because of any action or non-action by an individual or group during the period from September 1, 1972, to September 6, 1972. The scheduled time missed will be prorated and deducted from salary (2-1/2 days deduction). One of the scheduled one-half student days each semester will become full student days, in each case the Thursday. The Fridays in each case would remain one-day for students, all day for teachers.” (Emphasis added.)

At trial, plaintiffs called as a witness Albert Hoffman who had been the teachers’ chief spokesman when the strike settlement agreement was made. During questioning by plaintiffs’ counsel, Mr. Hoffman was asked in regard to the agreement: "What was your intention when you entered into that language?” Defense counsel objected to allowing an answer as "inadmissible on the basis of the parol evidence rule”. Argument on the objection included the following by plaintiffs’ counsel:

"Mr. Raven: Your Honor, it’s my position that the contractual language is ambiguous. The agreement that scheduled time missed would be deducted was, as the evidence will show, and I argued it in my opening statement, that if there was time missed by the end of the year, maybe there would be a deduction. That’s ambiguous, because it’s not clear when we’re talking about the time being missed, your Honor, * * * the language is ambiguous as to when that time is to be measured, and I think that, accordingly, you must have, first of all, the admission of some parol evidence to explain when the parties intended that to be measured, * * * when that parol evidence is admitted, assuming it is, it will show that the intent of the parties was that there would not be any money deducted.”

The trial court sustained the objection stating in part, "I see nothing ambiguous in the language that’s stated in the contract and, so, the objection is sustained”. Plaintiffs now argue that this ruling was erroneous as a matter of law because the language of the strike settlement agreement contains one or more latent ambiguities. We believe that the instant case is controlled by Goodwin, Inc v Orson E Coe Pontiac, Inc, 392 Mich 195; 220 NW2d 664 (1974), and Union Oil Company of California v Newton, 397 Mich 486; 245 NW2d 11 (1976).

Applying Goodwin, supra, we find that the trial court committed no error. The Goodwin opinion, pp 209-210, sets out three rules:

"1) Where ambiguity may exist in a contract, extrinsic evidence is admissible to prove the existence of ambiguity.
"2) Where ambiguity may exist in a contract, extrinsic evidence is admissible to indicate the actual intent of the parties.
"3) Where ambiguity exists in a contract, extrinsic evidence is admissible to indicate the actual intent of the parties as an aid in the construction of the contract.”

The language of the strike settlement agreement is clear and unambiguous. Plaintiffs’ brief argues in part that "The ambiguity presents itself in the present case in the phrase 'scheduled time missed’ as it appears in the strike settlement provision of the collective bargaining agreement”. No ambiguity can exist in this case, however, because the agreement specifies exactly what is meant by "scheduled time missed” by stating "2-1/2 days”. The proffered evidence is inadmissible because it would not tend to show that any ambiguity existed nor that ambiguity "may exist”.

In Newton, supra, the Court held that, even though no ambiguity exists, if there is no inconsistency between the proffered parol evidence and the written contract language, the parol evidence is admissible. While it is conceivable that witness Hoffman might have given evidence consistent with the written language, the content of the proffered evidence as articulated by plaintiffs’ counsel at trial was inconsistent with and contrary to the written language. We note that the plaintiffs’ trial counsel did not argue for admission of the testimony under any of the exceptions identified in Bob v Holmes, 78 Mich App 205, 213-214; 259 NW2d 427 (1977), and Bennett v Wright, 79 Mich App 566, 571-572; 263 NW2d 17 (1977). Therefore, the proffered evidence was inadmissible under Newton. Vermeylen v Knight Investment Corp, 73 Mich App 632, 644; 252 NW2d 574 (1977) (partial concurrence by Allen, J.).

The other portions of plaintiffs’ appeal are so clearly meritless as to require no discussion.

Affirmed. Costs to defendants.  