holding that fraud sufficient to void a contract must relate to a material matter in the contract
How later courts described this case
- holding that fraud sufficient to void a contract must relate to a material matter in the contract
Written by the judges who cited it.
The opinion
CARTER, J.,
concurring.
I am of the view that the decision or case referred to in the testimony of plaintiff and as found in the resolution of the Board refers to the Bishop case, 139 Oh St, 427, wherein the court held:—
“Under the first proviso of §7690-2, GC, a certificated female teacher completing five or more continuous years of employment by a board of education was entitled to the tender of a continuing contract from such board on September 1, 1941, or within a reasonable time thereafter, even though she was then married and there was a rule of the board in force against the employment or retention of married women teachers.” Syllabus 7.
While fraud is claimed in the securing of the contract by concealment of her married status such could hardly be successfully maintained when as held in the Bishop case it was the mandatory duty of the board to enter into a continuing contract whether the teacher was at the time married or unmarried. .
It would make no difference whether she signed the contract as Kuntzman or Cardinal as the contract is to be issued to the individual who qualifies for a continuing contract. The law cannot condemn that which it authorizes or sanctions.
*87 Now as to the rule and provision in the contract as to non-employment of married female teachers. The Board waived that provision when it passed the resolution to the effect:—
“Motion was made by Reddy and seconded by Herman that we employ Mrs. Esther Cardinal as a substitute teacher for the balance of the school year as of January 5, 1942, unless the court should decide to the contrary on the tenure contract.” (Underscoring Mine.)
Plaintiff testifies that if the case went in favor of the teachers she would receive her full salary instead of substitute pay. The Bishop case was decided favorable to the teachers as found in paragraph seven of the syllabi.
The members of the board must have had something in contemplation when they passed the resolution containing the language as above indicated. From the evidence I am of the view that if the teachers were successful in the Bishop case plaintiff in that event was entitled to full pay as a regular and not as a substitute teacher. Had the board desired to terminate the contract entered into on account of marriage contrary to the rules of the board it might have done so. This it did not do but made arrangements with plaintiff as above indicated.
For these reasons the judgment of the common pleas court must be affirmed.