Timmerman v. Stanley
| Decision Date | 05 August 1905 |
| Citation | 51 S.E. 760,123 Ga. 850 |
| Parties | TIMMERMAN v. STANLEY. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
If one agreed to teach another in certain lines of instruction until the pupil was proficient in them, and, after beginning the course and receiving payment in full, abandoned the contract and refused to teach the student longer, the latter would have a right to treat the action of the teacher as a rescission and bring suit for the amount which had been paid by him.
If one of two contracting parties claims that the other has committed a breach of the contract, he cannot, in the same action, both treat the contract as rescinded and sue for the amount paid by him to the other party, and at the same time rely on the contract as existing.
The allegations of the declaration in this case make it a suit for the amount paid to the defendant by the plaintiff treating the contract as rescinded. In addition, the plaintiff sought to recover certain damages resulting from a breach of the contract, treating it as of force. The latter claim should have been stricken on demurrer, as inconsistent with the former.
The demurrer was not general for misjoinder of causes of action so as to put the plaintiff upon his election, but was for inconsistency in joining certain claims with another, which had first been made, and which it was claimed determined the character of the action.
As a general rule, where one party asserts the right to rescind a contract for nonperformance by the other of his covenant, the party seeking rescission must restore or tender back to the other party what has been received from him, so as to restore the parties to the condition in which they were before the contract was made. But this rule has no application to a case where one agrees to teach another a certain thing, and, after beginning the course of instruction, refuses to proceed further, whereupon the other party treats the contract as rescinded, and brings suit to recover the amount which he has paid under the agreement.
Under the principles above announced, there was no error in striking from the declaration certain claims for expenses in attending school, expenses pending suit, and delay in being prepared for business; but the entire case should not have been dismissed.
It does not appear that there was any contract in writing, and a demurrer on the ground that a copy of it was not attached as an exhibit was not well founded.
Error from City Court of Macon; Robt. Hodges, Judge.
Action by W. L. Timmerman against G. W. H. Stanley. Judgment for defendant. Plaintiff brings error. Reversed.
The allegation that defendant refuses to pay when the amount paid by plaintiff implied that a demand had been made.
Timmerman brought suit against Stanley, alleging as follows: On July 29, 1903, the plaintiff bought of the defendant a scholarship in Stanley's Business College, in the city of Macon, in the telegraphic department, which embraced a course in learning telegraphy in said college. On August 12, 1903, he bought of the defendant a scholarship in the shorthand department in said college, which embraced a course in learning stenography, typewriting, etc. "The said scholarships were delivered to petitioner under the contract that a full course might be taken by him until he was proficient in said lines selected, without a limit of time." Stanley is the proprietor of the college, and the scholarships were sold by him to the plaintiff for the sum of $64. On August 2, 1904, the plaintiff was expelled by the defendant from the college for no fault or cause on his part. He had violated no rules of the college, nor had he been guilty of any conduct to authorize the expulsion. He had not completed the courses prescribed by the scholarships, and at the time of his expulsion was still pursuing his studies at the college. "Petitioner shows that said Stanley refuses to pay back to your petitioner the $64 paid for said scholarships, and to which your petitioner is entitled on account of said Stanley failing to carry out said agreement in said scholarships; and petitioner prays for a judgment against said Stanley for said sum." By the breach of the contract defendant has damaged plaintiff in the sum of $500. Plaintiff has paid out $300 for board and expenses in attending the school in order to qualify himself for business. By reason of the expulsion he cannot now finish his courses, so as to enter business, as other business colleges will not receive him after being expelled from this one. He is now at a monthly expense of $15, and will be so up to the time of the hearing of this action. "He prays for a judgment for said sum against the said Stanley." By reason of the breach of the contract defendant has delayed plaintiff in finishing his course so as to enter business for the current year, to his injury in the sum of $500. The defendant demurred to the declaration generally, and also specially. The demurrer to that part of the declaration which seeks to recover the price paid for the scholarships was based on the ground that such price was not the legal measure of damages to which the plaintiff was entitled, if entitled to anything under the declaration. The allegation as to the expenditure of $300 for board and expenses was demurred to on the ground that such items were not elements of damage for an expulsion from the college, and "because the plaintiff having elected to disaffirm and rescind said contract by suing for recovery of the price paid for said certificate cannot bring an action for a breach of said contract arising under said certificate"; because an action for said expenses was an action inconsistent with a suit for the recovery of the purchase price of said scholarship and cannot be joined in the same declaration. The allegation that the plaintiff could not enter any other business college was demurred to, because it did not...
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