D.C.N Conservatory Of Music v. Dickenson

• Decision Date: 06 March 1912
• Citation: 73 S.E. 990,158 N.C. 207
• Parties: COLUMBIAN CONSERVATORY OF MUSIC. v. DICKENSON.
• Court: North Carolina Supreme Court

73 S.E. 990

(158 N.C. 207)

COLUMBIAN CONSERVATORY OF MUSIC.

v.DICKENSON.

Supreme Court of North Carolina.

March 6, 1912.

1. Bills and Notes (§ 493^*)— Consideration— burden.

The burden is on the maker of a note to show want of consideration.

[Ed. Note.—For other cases, see Bills and Notes, Cent. Dig. §§ 1652-1662; Dec. Dig. § 493.*]

2. Contracts (§ 93*) — Termination — Grounds.

Where defendant gave a note and a check for a course of musical instruction, he cannot terminate the contract merely because he thought the check was a note.

[Ed. Note.—For other cases, see Contracts, Cent. Dig. §§ 415-419; Dec. Dig. § 93.*]

3. Damages (§ 120*)—Breach or Contract —Measure.

Defendant gave plaintiff a note and a check for a course of musical instruction for his daughter, but terminated the contract and refused to let his daughter continue with the course. Held, that the measure of damages for defendant's breach of contract was the amount of the note and check.

[Ed. Note.—For other cases, see Damages, Cent. Dig. §§ 291-305; Dec. Dig. § 120.*]

Appeal from Superior Court, Vance County; Cooke, Judge.

Action by the Columbian Conservatory of Music against J. H.Dickenson. From a judgment for insufficient damages, plaintiff appeals. Reversed, and new trial ordered.

This was a civil action, commenced before a justice of the peace, and tried on appeal in the superior court of Vance county, October term, 1911; his honor Judge Cooke presiding. The action was brought to recover on an unpaid and protested check for $12, and on a note for $33, dated March 22, 1910, given by defendant to plaintiff, and payable December 1, 1910, with interest after maturity.

T. T. Hicks, for appellant.

J. C. Kittrell and Thomas M. Pittman, for appellee.

BROWN, J. The pleas of defendant in answer interposed two defenses: (1) Fraud in procuring the execution of the note and check; (2) a failure of consideration. His honor instructed the jury that there was no evidence of fraud, which is patent from an examination of the evidence. Plaintiff re quested the court to instruct the jury upon all the evidence, if believed, to render a verdict for the amount of both note and check. This instruction was refused. All the evidence shows that the note and check were given for a course of musical instruction to be given by mail by plaintiff to defendant's daughter. She made the application in due form, and received a certificate of enrollment or scholarship, which defendant produced on the trial, on notice. Defendant testified that he thought it was a note for $12 and not a check that he had signed, payable April 12th, and that "when he found out, April 18th, that it was a check, he refused to have anything more to do with the instructions or to allow his daughter to take the course." He admitted that the plaintiff tendered the instructions called for by the contract, and that he refused to allow his daughter to receive them.

We fail to see a partial, much less a total, failure of consideration. Although notes as simple contracts require a consideration to support them, It has been long settled that they import a consideration prima facie, so as to throw on the maker the burden to show a want of consideration. McArthur v. McLeod, 51 N. C. 475; Campbell v. McCormac, 90 N. C. 492. In the latter case, Mr. Justice Ashe, quoting from Story & Daniel, says: "That it is wholly unnecessary to establish that a promissory note was given upon a consideration; and the burden of proof rests upon the other party to establish the c6ntrary, and to rebut the presumption of validity, and value which the law raises." The note sued on was given in consideration of an agreement in writing upon the part of the plaintiff to give to defendant's daughter musical instruction by mail. The contract was duly entered into and acted upon for three weeks; the...