International Text-book Co. v. Martin
| Decision Date | 03 April 1915 |
| Citation | 221 Mass. 1,108 N.E. 469 |
| Parties | INTERNATIONAL TEXT-BOOK CO. v. MARTIN. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
C. E. Lawrence, of Boston, for plaintiff.
J. F Gadsby, of Boston, for defendant.
By the written agreement between the plaintiff and the defendant's son, the son subscribed 'for a scholarship in the International Correspondence Schools covering a course of correspondence instruction in telephone engineering,' and he promised to 'pay for said scholarship the sum of' $78.40, in installments of $5 each, the first installment to be paid at the time of signing the subscription and the remaining installments 'within each and every period of four weeks hereafter until said price is paid in full.' It was further agreed that in case of default in the payment of any one of said installments when due and payable the whole of the amount remaining unpaid should thereupon at the option of the plaintiff become due and payable. The contract contained these further provisions:
In addition to the foregoing the following words were printed at the bottom of the contract: 'We do not refund money paid for scholarship.'
The defendant guaranteed 'the payment to you [the plaintiff] of the price agreed to be paid for the within-mentioned scholarship in accordance with the terms of the within subscription.' Both contracts were dated August 22, 1910.
The son pursued his studies under the plaintiff's instruction for some four months and paid four installments in addition to that paid when the contract was signed. He then (on or about January 1, 1911) stopped studying and refused to make any further payments. This action on the guaranty was brought on January 5, 1912, to recover the unpaid installments amounting to $53.40.
The defendant admitted that he signed the contract and that he read it before he signed it. That included the plaintiff's contract with the son, which by the terms of the contract of guaranty was incorporated into the guaranty contract. Two defenses were set up: Fist, that on or about January 1, 1911, when he was not in default in the payment of the installments due from him, the son elected not to go on with the instructions called for by the contract; and, second, that certain misrepresentations were made by the agent of the plaintiff when the contract was signed by the son.
The first defense is in effect based on the assumption that the contract sued on was a contract to pay $5 a month for instructions to be given to the son by the plaintiff until the sum of $78.40 had been paid, or, if that contention be not sound, that under the circumstances we have stated the plaintiff is not entitled to recover the contract price but is entitled to recover damages only for breach of the contract by the son. The latter defense is stated in the fourth and fifth rulings asked for by the defendant, and set forth in the note. [1]
It is plain that the contract is not a contract for instruction by the month, to be paid for and furnished until $78.40 should have been paid. By the terms of the contract between the son and the plaintiff, the son subscribed 'for a scholarship in the International Correspondence Schools covering a course of correspondence instruction in telephone engineering' to be given until he was qualified to receive a diploma or certificate of proficiency, provided he completed the course within five years from the date of the agreement. That is to say, the son had five years in which to complete the course and the plaintiff was bound to carry on the instruction agreed to be given for that period, or until the son should be qualified to receive a diploma within that period. The payments to be made by the son were to be made in 16 installments (15 of which were for the sum of $5 each and the sixteenth for the sum of $3.40), and these installments were to be paid every four weeks, beginning with the date of the signing of the contract. The case comes within the first rule of Sergeant Williams in his note to Pordage v. Cole, 1 Saunders, 319, 320. That rule is in these words:
'If a day be appointed for payment of money, or part of it, or for doing any other act, and the day is to happen, or may happen, before the thing which is the consideration of the money, or other act, is to be performed, an action may be brought for the money, or for not doing such other act before performance; for it appears that the party relied upon his remedy, and did not intend to make the performance a condition precedent.'
This again was founded upon the judgment of Chief Justice Holt in Thorp v. Thorp, 12 Mod. 455, 461. In other words the promise contained in this contract which the plaintiff now seeks to enforce was an independent, not a dependent, promise.
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 case of International Text-Book Co. v. Martin, 82 Neb. 403, 117 N.W. 994, seems in effect to be a decision that there is such a right to reduce the amount to be recovered in such a case. It was there held that the burden was on the defendant to prove the benefit ensuing to the plaintiff by the defendant's renunciation, and in the absence of proof of such a benefit that the sum stipulated for had to be paid.
If that be so ordinarily, or if ordinarily there is a question as to that, it is disposed of in the case at bar by the terms of the contract between the plaintiff and the son, which was guaranteed by the defendant and by reference made part of the contract of guaranty. It is there expressly provided that:
'This subscription, when accepted by you [the plaintiff], shall not be subject to cancellation, and that you will not be required to refund any part of the money paid for said scholarship,' and 'We [the plaintiff] do not refund money paid for scholarship.'
The direct effect of these two provisions is confined to the return of money paid by the scholar. But indirectly they affect the construction of the contract. If money paid for the 'scholarship' is not to be returned under any circumstances, it is plain that as matter of construction the contract between the plaintiff and the son was a contract by which the son bought a 'scholarship,' that is to say a right to be instructed in telephone engineering for...
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