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Breach of contract. Before Judge Geer. Seminole Superior Court. June 24, 1953.
A county school board is not a body corporate that may sue and be sued, and in an action against named individuals comprising the Board of Education of Seminole County, for breach of a contract entered into by the said board with the plaintiff, it was not error for the trial court to sustain the general demurrer and dismiss the action.
The Board of Education of Seminole County, Georgia, acting through its individual members, on July 11, 1952, entered into a written contract with H. H. Beckanstin, a licensed architect, for the construction of a school building and certain additions to existing school buildings in Seminole County. The contract was on a form prepared by the American Institute of Architects, and it identified the work to be done, the fee of the architect on a percentage basis, and the respective duties of the parties. H. H. Beckanstin, the architect, prepared plans and specifications for said buildings and additions, which he had approved by the State Board of Education in Atlanta. Subsequently, the Seminole County Board of Education breached the contract by refusing to allow Beckanstin to perform the contract and build the buildings. The board, through its chairman, notified Beckanstin that it was canceling the contract, and that it would not perform the contract or allow Beckanstin to perform. After this, Beckanstin filed suit in Seminole Superior Court against the Seminole County Board of Education and the individuals composing the Board and alleged substantially the above-stated facts. He sued for damages for the breach of the contract and also for reimbursement of certain expense he had been put to, as provided in the contract.
The defendants filed general and special demurrers to the petition and, after hearing and argument, the trial judge sustained the general demurrer to the petition as amended and dismissed the amended petition. The special demurrers were not passed upon. The case is before the Court of Appeals on exceptions filed by the plaintiff below, complaining of the judgment sustaining the general demurrer and dismissing the petition.
A county board of education is not a corporate body with the power to sue and be sued. Consequently, a suit for the breach of a contract cannot be brought against it. It is merely an agency through which the county acts in school matters. Board of Education of Candler County v. Southern Michigan Nat. Bank, 184 Ga. 641 (192 S. E. 382); Mattox v. Board of Education of Liberty County, 148 Ga. 577 (97 S. E. 532, 5 A. L. R. 568); Smith v. Board of Education of Washington County, 153 Ga. 758 (113 S. E. 147); Board of Education of Houston County v. Hunt, 29 Ga. App. 665 (116 S. E. 900).
In their official capacity the members of a county school board cannot be sued for the breach of a contract made on behalf of or in the name of the board.
For a positive tort committed by the members of a school board acting in unison and beyond the scope of their official authority the members of the school board are personally liable. They are likewise liable, as was well stated by Judge Felton in Richter v. Harris, 62 Ga. App. 64 (7 S. E. 2d 432), for wilful or corrupt acts of omission.
In the present case, though the members of the school board are named individually, no semblance of an action is set out against them as individuals. Indeed, the plaintiff in his brief in this court makes it clear that he does not contend that he is entitled to recover of the members of the school board individually.
The plaintiff cites cases holding that mandamus is the proper remedy to compel a school board to perform a duty imposed by law, and still others in which it is held that it is permissible for the members of the school board in their official capacity to assert or defend title to property of the school board. In none of these cases is any money judgment prayed either against the school board or against any of its members in any capacity. None of the cases cited by the plaintiff is authority for a holding contrary to what is said here.
The petition did not set forth a cause of action, and the court did not err in sustaining the general demurrer.
Judgment affirmed. Felton, C. J., and Nichols, J., concur.
Custer & Kirbo, E. P. Stapleton, contra.
Sams, Wotton & Sams, E. L. Smith, Jr., for plaintiff in error.
Saturday May 23 03:25 EDT

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