Opinion
No. 7918DC1141
Filed 3 June 1980
1. Contracts 4.1 — nonrefundable tuition — failure of child to attend school — no failure of consideration Where plaintiff entered a contract under the terms of which tuition for plaintiff's child to attend defendant's school was payable in advance and not refundable, plaintiff was not entitled to recover tuition paid to defendant on the ground of failure of consideration because plaintiff's former wife would not let the child attend defendant's school after the school year began.
2. Contracts 20.1 — frustration — impossibility of performance A contract which required plaintiff to pay tuition in advance with no refund in order for defendant to hold a place in defendant's school for plaintiff's child was not subject to rescission because of frustration when plaintiff's former wife would not permit the child to attend defendant's school, since there was no fundamental change in conditions so that if the child had attended the school the object for which the contract was made would not have been attained. Nor was the contract subject to rescission on the ground of impossibility of performance since defendant was able to perform and plaintiff's inability to deliver the child to the school did not constitute impossibility of performance.
3. Contracts 6 — nonrefundable tuition — contract not unconscionable A contract requiring plaintiff to pay tuition in advance with no refund in order for defendant to prepare and hold a place in its school for plaintiff's child was not unconscionable.
APPEAL by defendant from Hatfield, Judge. Judgment entered 5 October 1979 in District Court, GUILFORD County. Heard in the Court of Appeals 16 May 1980.
Wyatt, Early, Harris, Wheeler and Hauser, by A. Doyle Early, Jr., for plaintiff appellee.
Max D. Ballinger for defendant appellant.
Judge MARTIN (Harry C.) dissenting.
This is an action to recover for tuition paid by plaintiff to defendant to enable the plaintiff's child to attend a school operated by the defendant. Plaintiff and defendant entered into a contract which provided in part as follows:
"We understand that the tuition is $1,080 per year, payable in advance of the first day of school, no portion refundable. We also understand that upon your approval we may elect to pay tuition in $100 per month installments with interest according to your published schedule, but that such an election does not in anywise modify the stipulation that tuition is payable in advance."
The plaintiff is divorced, and his former wife has custody of their child. The plaintiff paid the tuition in advance but after the school year had commenced, his former wife refused to allow the child to enroll in the school. The plaintiff alleged that the headmistress of the school promised to return the tuition but then refused to do so.
Plaintiff also alleged that the contract is unenforceable for lack of consideration or for failure of consideration. He alleged further the failure of the defendant to return the consideration was an unfair trade practice under G.S. 75-1.1 and prayed for treble damages.
Both parties moved for summary judgment, and the defendant moved to dismiss under G.S. 1A-1, Rule 12 (b) (6). The court granted the plaintiff's motion for summary judgment. Defendant appealed.
We hold the court erred in granting the plaintiff's motion for summary judgment and in not granting the defendant's motion to dismiss pursuant to G.S. 1A-1, Rule 12 (b) (6). The complaint shows plaintiff entered into a contract under the terms of which tuition was payable in advance and not refundable. The terms of the contract are not ambiguous and the courts are bound to enforce it as written. See Loving Co. v. Contractor, Inc., 44 N.C. App. 597, 261 S.E.2d 286 (1980) and Weyerhaeuser v. Carolina Power and Light Co., 257 N.C. 717, 127 S.E.2d 539 (1962).
The appellee contends the contract should be rescinded because of frustration and impossibility of performance. There was not a fundamental change in conditions so that if the child had attended the school, the object for which the contract had been made would not have been attained. This makes the doctrine of frustration inapplicable. See McCay v. Morris, 46 N.C. App. 791, 266 S.E.2d 5 (1980). Nor do we believe impossibility of performance applies. Impossibility of performance is recognized in this jurisdiction as excusing a party from performing on an executory contract if the subject matter of the contract is destroyed without fault by the party who wishes to be excused from performance. That is not the situation in the case sub judice. The defendant was able to perform. It had saved a place in the school for plaintiff's child. When the plaintiff was unable to deliver the child to the school, this did not constitute impossibility of performance. See Sechrest v. Furniture Co., 264 N.C. 216, 141 S.E.2d 292 (1965). We believe our holding in the case sub judice is consistent with prior cases in this jurisdiction, Horner School v. Wescott, 124 N.C. 518, 32 S.E. 885 (1899) and Bingham v. Richardson, 60 N.C. 215 (1864) and the majority of jurisdictions in this country. 69 A.L.R. 714 (1930).
The plaintiff also contends he should be relieved from the terms of the contract because it is unconscionable. There was not a disparity of bargaining power between the parties in this case. The plaintiff could have chosen some other school for his child. He entered into a contract which provided there would not be a refund. This was a reasonable requirement in view of the expense to defendant in preparing for the child and holding a place for him. We hold this provision of the contract is not unconscionable.
The plaintiff argues further that the contract should not be enforced because by requiring the forfeiture of the tuition, it provides for a penalty rather than liquidated damages. The difficulty with this argument is that the defendant is not asking for damages. It is asking that the contract be enforced as written. We hold that it is not unreasonable for the defendant to require payment in advance with no refund in order for the defendant to prepare and hold a place in the school for plaintiff's child.
The plaintiff's last argument is that the headmistress of the school promised to refund the tuition and the failure to do so is a breach of contract by the defendant. Assuming the headmistress was acting within her authority, this promise is unenforceable as being without consideration.
The plaintiff has entered into a contract which is not ambiguous. He is bound by its terms. The defendant's motion to dismiss should have been allowed. We reverse and remand for a judgment consistent with this opinion.
Reversed and remanded.
Judge WELLS concurs.
Judge MARTIN (Harry C.) dissents.