International Correspondence School, Inc. v. Crabtree

• Decision Date: 19 January 1931
• Citation: 34 S.W.2d 447,162 Tenn. 70
• Parties: INTERNATIONAL CORRESPONDENCE SCHOOL, Inc., v. CRABTREE.
• Court: Tennessee Supreme Court

34 S.W.2d 447

162 Tenn. 70

INTERNATIONAL CORRESPONDENCE SCHOOL, Inc., v. CRABTREE.

Supreme Court of Tennessee.

January 19, 1931

Certiorari to Court of Appeals on Appeal from Circuit Court, Hamilton County; M. N. Whitaker, Judge.

Suit by the International Correspondence School, Incorporated against S. M. Crabtree. Plaintiff obtained judgment in the justice court, the circuit court upon appeal dismissed the suit, and the Court of Appeals entered judgment for plaintiff, and defendant filed petition for writ of certiorari.

Petition denied.

C. E Russell, of Chattanooga, for plaintiff in error International Correspondence School.

W. J Fletcher, of Chattanooga, for defendant in error Crabtree,

MCKINNEY J.

This suit was begun before a justice of the peace by a summons commanding the defendant in error to appear and answer the plaintiff in error in a "civil action of debt of $55.00 by sworn account from the State of Pennsylvania here to the court shown." The parties will be referred to as plaintiff and defendant, as they appeared in the trial court. The defendant, under oath, denied owing the account, and filed a formal plea of nil debit.

Since no questions are raised by counsel as to the sufficiency of the pleadings, we will dispose of the case upon its merits.

Defendant entered into a written contract with plaintiff for a correspondence course in arithmetic and English, agreeing to pay therefor $75, $10 when the contract was executed, and $5 each month thereafter until the entire consideration was paid. Plaintiff was to give defendant instruction until he was qualified to receive a certificate of proficiency provided he completed the course in four years. The plaintiff has fully lived up to its contract.

The defendant, after making the cash payment of $10 and two monthly payments of $5 each, notified plaintiff that he did not have time to do the work, and that he would make no further payments.

The justice of the peace gave judgment for plaintiff in the sum of $55. The circuit court, upon appeal, dismissed the suit. The Court of Appeals entered judgment in favor of plaintiff for $20, the amount due under the contract when the suit was begun. The defendant has filed a petition for writ of certiorari, in which it is insisted that the evidence shows that plaintiff has not suffered any loss as a result of his breach of the contract. Upon this question we find that there is no direct and positive proof as to the damages sustained by plaintiff. The defendant further contends that the burden is upon the plaintiff to show the extent of its damage, and, having introduced no evidence upon this question, the Court of Appeals should have affirmed the judgment of the circuit court.

Counsel have referred us to three cases in which the facts are similar to those in this case, in each of which different results were reached. In Michigan the court denied plaintiff any relief, and said: "It is the rule in this state that a party to an executory contract may always stop performance by the other party by an explicit direction or renunciation of the contract, and refusal to perform further on his part, and that he is thereafter liable only upon the breach of the contract. The contract price is recoverable only upon the theory of performance, never upon the theory of inability to perform." International Text-Book Co. v. Jones, 166 Mich. 86, 131 N.W. 98, 99.

That court held that the burden was upon plaintiff to show the extent of his damage.

In International Text-Book Co. v. Martin, 221 Mass. 1, 108 N.E. 469, 470, the court gave the plaintiff full relief, upon the theory that the promise to furnish instruction and the promise to pay therefor were independent covenants. The court said:

"In case of independent promises the promisor has to perform his promise and if he does not get what he pays for his remedy is by a cross-action. In the case at bar the plaintiff has been ready and willing at all times to go on with the son's instruction, but the son has refused to study. The plaintiff has not been guilty of any breach of its agreement. Under these circumstances the defendant's contention comes to this: The maker of an independent promise who renounces his right to the thing paid for by him can show that fact in reduction of the sum the promisee is entitled to recover under the independent promise."

The distinction between dependent and independent covenants is thus stated in 13 Corpus Juris, 567, 568:

"Agreements are mutual and dependent where performance by one party is conditioned on and subject to performance by the other, and a party who seeks performance must show performance or a tender or readiness to perform on his part. Covenants or stipulations are independent when the consideration of the stipulation on the one side is the mutual promise on the other, and an actual performance or tender is not required, but the remedy on both sides is by action."

The application of this rule in the Massachusetts case is based upon an example contained in the old English authorities as follows: "If a day be appointed for the performance of the covenant on one part, and it is to happen, or may happen, before the covenant in the other part is to be performed, the covenants are not dependent." This test of intention is quoted in the Massachusetts case and in the case of Officer v. Sims, 49 Tenn. (2 Heisk.) 507. In the latter case it is pointed out that the tendency of modern judicial opinion is to depart from this technical distinction, and this court has not followed that rule, since that opinion was written, as appears from the decisions which will be later referred to herein. In the recent case of Allemong v. Augusta National Bank, 103 Va. 243, 48 S.E. 897, 899, the court said: "Courts construe agreements so as to prevent a failure of justice, and hold dependent covenants to be independent when the necessity of the case and the ends of justice require it, notwithstanding the form"--citing authorities.

The Supreme Court of Alabama, although one of the first to recognize the English rule quoted above (Bailey v White, 3 Ala. 330), in a recent case said: "However, the present tendency of the courts generally, and in this jurisdiction, is against the construction of promises as independent covenants, in the absence of language to the contrary, in the contract, and that promises which form the consideration for each other are held to be concurrent or...