Opinion
36518.
DECIDED FEBRUARY 28, 1957.
Action on notes, etc.; directed verdict. Before Judge Baldwin. Macon City Court. April 19, 1956.
Roy B. Rhodenhiser, Jr., Buckner F. Melton, for plaintiff in error.
Sell Comer, John D. Comer, contra.
Under the record of this case a directed verdict was not erroneous, and the court did not otherwise err in the rulings.
DECIDED FEBRUARY 28, 1957.
Georgia Military Academy entered suit against Clyde C. Heath. Omitting the formal parts, count 1, paragraph 2 alleges: "On September 15, 1954, the defendant executed in favor of petitioner seven promissory notes, each in the principal amount of $100, the first note being due on October 15, 1954, and a note being due monthly thereafter until April 15, 1955, the date upon which the last note was due. Each note provides for interest after maturity until paid at 8 percent per annum with all cost of collection, including 10 percent attorneys fees if collected by law or through an attorney at law. A copy of each note is attached to this petition labeled exhibit a-1 through a-7 and is hereby incorporated into and made a part of this petition. Defendant is indebted to your petitioner on these notes in the principal amount of $700 with interest on each note at 8 percent per annum for the due date as described above, plus 10 percent of the principal and interest as attorneys fees." Paragraph 3 alleges that the plaintiff served the defendant notice of intention to claim attorneys' fees in accordance with the statute on that subject. Paragraph 4 alleges demand for payment and refusal to pay.
Paragraph 5 alleges: "The consideration for which said notes were given was the annual tuition at petitioner's school of defendant's minor son, Kenneth Clyde Heath. Defendant submitted an application blank to petitioner which provided in part as follows: `I have examined your catalogue and hereby enter my son or ward for the next school year, subject to the terms outlined in this book and including those price changes as outlined on the back of this application. I agree to be governed by the financial obligations and school regulations as outlined in the catalogue, and make payments according to schedule.' Defendant elected to pay the annual tuition under Payment Plan 3 which provided for the payment of $345 cash on entrance and notes for the balance." By amendment the plaintiff added the following: "A copy of said application showing the portion of said application relied upon by the plaintiff and quoted above is attached hereto marked exhibit `c'."
Paragraph 6 alleges: "One of the provisions in the catalogue referred to in the application is as follows: `Contracts: It is understood that when a cadet registers in G. M. A. he is enrolled for the academic year; and, as the employment of teachers and the purchase of provisions for the operation of the school are contracted for the year in advance, it is distinctly understood between the parent or guardian and the school that there can be no reduction in the charges of any cadet who leaves the school before the expiration of the academic year, except when authorized in the case of sickness by a physician selected by the school. If a cadet deserts, or withdraws, or commits some offense for which the discipline committee thinks expulsion is necessary no part of the catalogue price will be refunded. A cadet whose account has not been settled up to date will not be graduated.'" By amendment the plaintiff added the following: "A copy of the page of said catalogue relied upon by the plaintiff and quoted above is attached hereto marked exhibit `d'. Exhibit `d' is page no. 93 of the catalogue referred to in the first paragraph of exhibit `c'."
Count 2 of the petition sued on an open account in the amount of $32.07. A verdict was obtained in this amount but was written off by the plaintiff.
The defendant filed general and special demurrers, but there is no assignment of error in the bill of exceptions to the rulings of the court on these demurrers.
The defendant's answer, as amended, reads: "2. In answer to paragraph 2 of plaintiff's petition, defendant admits that he executed the seven promissory notes set forth therein. Further answer paragraph 2 of plaintiff's petition, defendant denies that he is indebted to the plaintiff in the amount of $700, plus interest on each note of eight percent per annum, plus ten percent of the principal and interest as attorneys fees. 3. Defendant admits the allegations of paragraph 3 of plaintiff's petition. 4. Defendant denies the allegations of paragraph 4 of plaintiff's petition. 5. For want of sufficient information, defendant can neither admit or deny the allegations of paragraph 5 of plaintiff's petition. 6. For want of sufficient information, defendant can neither admit or deny the allegations of paragraph 6 of plaintiff's petition. [The defendant struck paragraph 7 by amendment.] 8. For further plea and answer, the defendant in said case, files this plea of nudum pactum and shows: That the instruments sued upon were executed and delivered without any consideration whatsoever. 9. For further plea and answer, defendant shows that the defendant's minor son, Kenneth Clyde Heath, was dismissed from Georgia Military Academy without any cause whatsoever. 10. That defendant's minor son, Kenneth Clyde Heath, did not desert, did not withdraw from the institution, and did not commit any offense for which expulsion was necessary nor did he commit any offense for which the disciplinary committee thought expulsion was necessary. 11. That the disciplinary committee dismissed the defendant's minor son, Kenneth Clyde Heath, without cause, and that the said Georgia Military Academy and the officials at said Academy accepted the sum of $349 from the defendant, including a $15 insurance premium, together with the promissory notes described in plaintiff's petition, at the time the defendant's minor son, Kenneth Clyde Heath, applied for enrollment at said Academy. At said time, plaintiff and its officers and agents represented to defendant that his son would be given schooling, food, housing and other services, in consideration for the payments of money, described above. In reliance upon said promises, defendant enrolled his said son in said institution, paid the said sum of money and gave said notes to said institution. Said money and notes were accepted with the intent to defraud the defendant, and the defendant was defrauded by the expulsion of his son, Kenneth Clyde Heath, from said Academy, without just cause. 12. Defendant shows that the plaintiff, and the plaintiff's alter ego, Colonel W. R. Brewster, president of plaintiff institution, operate a general scheme and plan for defrauding parents of children who enroll said children in said institution, that said plan consists of representations to the parents that their children will be enrolled in said school, educated, and cared for during a specified period, in consideration of the payment of a specified sum to said institution. Said Brewster thereafter directs the dismissal of the children from said institution by a group denominated as a discipline committee and refuses to refund any amounts paid to said institution by said parents and then claims against or sues said parents for further sums he claims due. In said described cases, said children never received the promised benefits. Said Brewster has publicly and privately stated that he has never failed to collect a claim for tuition and board evidencing his plan and scheme to perpetuate the unconscionable collection of money for room, board, and tuition, which in fact has not been furnished."
By amendment the following was added to paragraph 12: "That in pursuant to said general scheme and plan for defrauding parents of children who enroll at said school, the said Colonel W. R. Brewster represented to the parent of Kenneth Clyde Heath Clyde C. Heath the defendant herein, that the said Kenneth Clyde Heath would be enrolled in said school, educated and cared for during a specified period, in consideration of a specified sum in said institution. Thereafter said Brewster directed the dismissal of said Kenneth Clyde Heath from said institution by a group denominated as the discipline committee and has refused and now refuses to refund any moneys paid to said institution by the said defendant and he has claimed against and sued the defendant for further funds which he claims due. The defendant's son, Kenneth Clyde Heath, has never received the promised benefits, and your defendant has been involved in said general scheme by the said Brewster and treated in the manner as set forth in said general scheme."
"13. For further plea and answer, defendant shows that his son, Kenneth Clyde Heath, went to Georgia Military Academy, at College Park, Georgia, prior to the commencement of the school year, for the purpose of attending the early football at that institution, at which time the said promissory notes were executed by the defendant. 14. That defendant's minor son, Kenneth Clyde Heath, was dismissed on October 4th, 1954, shortly after the commencement of the academic year, on September 15th, 1954, and that said Colonel W. R. Brewster told the defendant that there would be no further moneys due and that the defendant would be entitled to a refund of the moneys already paid to the institution, for the defendant's minor son's tuition. That said President Brewster stated that if the refund was not in full, then he estimated that the refund would amount to at least two-thirds and not less than one-half of the $349, already paid during the month of September, 1954, by the defendant to Georgia Military Academy, and that the bookkeeper would mail defendant a check for said refund. 15. That said Colonel W. R. Brewster made the statements hereinbefore set forth with the intent and purpose of misleading defendant and defendant's minor son, intending by such statements to cause the defendant and the defendant's minor son to believe and expect that a refund of the moneys paid would be made and that no further charge would be claimed against defendant and that in reliance upon said misrepresentations, defendant failed to make demand at said time for the balance due him and was delayed in making a prompt claim for said balance. Said misrepresentations were a continuation and a part of the original misrepresentations described in paragraph 11, and all said misrepresentations comprise a part of the general plan and scheme on the part of the plaintiff to defraud the defendant. 16. Defendant shows that he has paid the sum of $349 to Georgia Military Academy for which he has not received the tuition and schooling of his son, Kenneth Clyde Heath, as anticipated at the time of said payment. 17. Defendant shows that said Georgia Military Academy is indebted to him in the sum of $349, for reasons as set forth in the previous paragraph. 18. Defendant shows that he is not indebted to the plaintiff in the sum claimed nor in any sum whatsoever, but that the plaintiff is indebted to him in the sum of $349, as hereinbefore set forth."
By amendment, the defendant added the following to the answer: "19. Defendant shows that he has never entered into a contract with plaintiff at any time to pay the amounts claimed by plaintiff in the event the defendant's said son was dismissed from said institution; however, if any such contract was entered into as alleged by the plaintiff, said contract has been rescinded by both parties by verbal agreements between the parties on or about October 4, 1954, in that an agreement was made on or about said date between the defendant herein and the aforesaid Colonel Brewster that no further amounts would be paid by defendant to plaintiff and further that some part of the $349 paid by defendant to plaintiff as described herein would be refunded to the defendant. 20. Defendant shows that he and the said Colonel Brewster, as an agent and employee of the plaintiff, reached an accord and satisfaction of all claims the plaintiff might have against the defendant on or about October 4, 1956, at which time said Colonel Brewster and defendant entered into a verbal agreement as alleged in paragraphs 14, 15 and 19 herein. 21. At the time said Colonel Brewster entered into the agreement with defendant described in paragraphs 14, 15, 19 and 20 hereinabove, he was acting with full authority to make said agreement and commitments in his capacity as president of said institution."
The plaintiff demurred to the defendant's answer, as amended, as follows: "1. Plaintiff demurs generally and specially to and moves to strike paragraph 19 of defendant's amended answer and says that said paragraph is legally insufficient to show a valid rescission of the contract entered into by the defendant and that said paragraph sets forth no defense to the plaintiff's demands. Further, said paragraph alleges no consideration for said alleged rescission and the allegations of said paragraph concerning the amount of refund are vague, indefinite and incomplete in law. 2. Plaintiff demurs generally to paragraph 20 of defendant's amended answer and says that the allegations of said paragraph are insufficient in law to constitute an accord and satisfaction and that said paragraph interposes no defense to plaintiff's petition, there being no consideration alleged for said accord and satisfaction. 3. Plaintiff demurs generally to paragraphs 19 and 20 and moves to strike the same on the ground that the rescission of said contracts and the alleged accord and satisfaction were without consideration and as such are legally insufficient to constitute a defense. 4. Plaintiff demurs specially to paragraph 21 of the defendant's amended answer and says that the allegations therein are vague, indefinite, and insufficient in law, in that it is not alleged that Colonel Brewster made said agreement in his capacity as agent of the plaintiff and while acting within the scope of his employment."
The plaintiff demurred to the defendant's answer as amended as follows: "1. Plaintiff demurs specially and generally to the plea of nudum pactum of the defendant, which is contained in paragraphs 8 through 15 of the defendant's answer and says that the same is legally insufficient to constitute a defense to this action. 2. Plaintiff demurs generally and specially to the action of the defendant which is allegedly set forth in paragraphs 16, 17, and 18 of his answer and says: (a). Said paragraphs set forth no cause of action against the plaintiff. (b). Said paragraphs seek to plead an action ex delicto against an action ex contractu and no grounds for equitable jurisdiction are shown. (c). The cross-action of said paragraphs is not germane to the original cause of action. 3. Plaintiff demurs generally and specially to paragraphs 8 through 18 of defendant's answer and says: (a). That said paragraphs collectively do not set forth a cause of action against the plaintiff. (b). That defendant in said paragraphs seeks to plead an action ex delicto against an action ex contractu. (c). The alleged matters set forth in said paragraphs are not germane to the plaintiff's cause of action. 4. Plaintiff demurs specially to and moves to strike paragraph 7 of defendant's answer and says that the allegation therein is prejudicial and is but a legal conclusion of the pleader with no facts being alleged to support said conclusion, and defendant further says that the legal conclusion reached is a non sequitur to the conclusion of the pleader that said contract is a unilateral one. 5. Plaintiff demurs specially to and moves to strike so much of paragraph 11 of defendant's answer as alleges that the money and notes were accepted with an intent to defraud the defendant and that the defendant was defrauded on the ground that said allegations are prejudicial, irrelevant and immaterial. 6. Plaintiff demurs specially to and moves to strike paragraph 12 of defendant's answer in its entirety and in particular to the portions of said paragraphs as alleges that Colonel Brewster operates a general scheme for defrauding parents and to the alleged habits and customs of Colonel Brewster as they may relate to other students. Plaintiff says that said allegations are irrelevant, immaterial, prejudicial, scandalous, scurrilous and impertinent. 7. Plaintiff demurs specially to so much of paragraph 14 as alleged that Colonel Brewster told the defendant that no further moneys would be due and that defendant would be entitled to a refund of moneys already paid or to portions of moneys already paid. Plaintiff says that said allegations are incomplete, insufficient in law, and are vague. Plaintiff calls upon defendant to allege when, where, to whom, and the circumstances surrounding said alleged utterances. 8. Plaintiff demurs specially to and moves to strike so much of paragraph 15 as purports to allege the intent of Colonel Brewster in making the alleged statements and other portion of said paragraph that alleges that defendant was delayed in making a prompt claim for the balance and that this was to defendant's detriment. Plaintiff says that said allegations are immaterial, irrelevant, and prejudicial and are but conclusions of the pleader without facts being pled in support thereof. Plaintiff calls upon defendant to allege how and why he was delayed in making a prompt claim for refund and how and in what manner said delay has been to the defendant's detriment."
The court overruled paragraphs 1, 3 and 4 of the plaintiff's demurrer to the defendant's answer and sustained paragraph 2 thereof. It is on the sustaining of the plaintiff's demurrer (which goes to paragraph 20 of the defendant's answer) that error is assigned here. Error is assigned also to the directed verdict.
The case proceeded to trial and after both sides introduced evidence the court directed a verdict in favor of the plaintiff. After the direction of the verdict the defendant filed a motion for new trial and added two special grounds by amendment. The court denied the motion, and the defendant assigns error here on this judgment.
1. The evidence introduced in the case is lengthy, covering 107 pages. It is our opinion that it is not essential to set out the evidence in detail. In Matthews v. Riverside Academy, 45 Ga. App. 30 ( 163 S.E. 238) the court said: "Where a boarding-school which has limited facilities for the accommodation of students contracts with a parent to admit his son as a pupil in the school for the academic year, and where the engagement of teachers and other provisions for the management of the school are contracted for by the school for the entire year in advance, all of which is in the contemplation of the parties at the time of the execution of the contract, and where the catalogue of the school, which, by the express terms of the contract, is made a part of the contract, provides that it is a condition upon which a pupil is admitted to the school that he remain until the end of the academic year, and that as `the engagement of teachers and other provisions for the management of the school are contracted for the entire year in advance, it is distinctly understood between the parent and the school that there can be no reduction in the charges of any' pupil who leaves the school before the expiration of the academic year except in case of sickness, the contract, notwithstanding the payments required of the parent are payable for separate periods of the academic year, is not severable, but is an entire contract, and where the pupil, who entered the school pursuant to the contract, voluntarily left before the expiration of the academic year, the school, after the expiration of the year, is entitled to recover on the contract the amount contracted for in payment for board and tuition for the entire year, where it does not appear that the place vacated by the pupil in the school was filled by the admission of another pupil. Civil Code (1910), § 4228; Sutton v. Howard, 33 Ga. 536; Newman v. Wolfson, 69 Ga. 764; Sanders v. Carter, 91 Ga. 450 ( 17 S.E. 345); Allison v. Dunwody, 100 Ga. 51 ( 28 S.E. 651); Henderson Elevator Co. v. North Georgia Milling Co., 126 Ga. 279 ( 55 S.E. 50); Mayor c. of Washington v. Patomac Engineering Co., 132 Ga. 849 ( 65 S.E. 80); Martin v. Lott, 144 Ga. 660 ( 87 S.E. 902)." See also Georgia Military Academy v. Rogers, 35 Ga. App. 789 ( 134 S.E. 829). We might add that there is no evidence to show that the vacancy created by the son of the defendant was filled during the year. In fact, the evidence shows that it was not.
The defendant testified that he intended, definitely and unequivocally, to enroll his son for the scholastic year 1954-55. The defendant testified in part as follows: "Q. Now, during the next academic year, you elected the same type payment plan that you had elected in 1953, didn't you? You agreed to pay a certain amount in cash and you actually paid that; is that right? A. Yes. Q. How much did you pay to Georgia Military Academy? A. I don't recall the exact figures. You mean for tuition or for books or for insurance? Q. No, sir. How much did you pay down payment? A. I think it must have been around $350. Q. And you paid that in order to enter into another contract for the academic year of `54-'55, didn't you? A. That's right. Q. Exactly the same type contract you had entered into for the other years; is that right? A. That's right. Q. Under the same conditions, obligations and limitations; isn't that correct? A. That's right."
The court propounded the following questions while the defendant was on the stand: "Q. Didn't you understand that he was going back and being enrolled in school the same way he was the year before? I didn't quite understand — A. My payment plan was, yes, sir. I agreed on the payment plan. Q. Did you understand you were subject to the same discipline rules? A. Sure. Q. And the same terms of the contract? I think we stopped when he said no there. There may be some further interrogation; I don't know. But you understood, did you, that the agreement was he was under the same plan and the same terms and requirements he was before? A. Yes, sir."
The defendant testified further: "Q. Now, Mr. Heath, for the academic year of `54-'55 I believe you have already testified that you paid part of the contract price under the terms of the old contract; is that right? A. Right. Q. And you intended thereby to enter into a new contract if they would take your boy back? Is that right? A. Well, I was going to pay what I promised to pay if I got something for it. Q. Under the same terms as the old contract? A. That's right."
There was nothing in the record to vary the terms of the written contract which was adopted by intention and action of the parties. The record shows that Cadet Heath did not do well in school during the 1953-54 term and in 1954 summer school, and that Heath went to G. M. A. and had a conversation about his son with Colonel Brewster, G. M. A.'s president. Colonel Brewster assured Mr. Heath that Cadet Heath had a chance to graduate provided he did satisfactory work and provided his conduct was satisfactory. By Heath's admission, Colonel Brewster in no way agreed to modify or vary the terms and conditions stated in the catalog. The defendant testified further: "Q. Mr. Heath, that brings on one or two other questions. You did not understand your agreement with Colonel Brewster in any way to modify anything said in his catalog, did you? A. No."
In our opinion, the testimony of the defendant as a party was self-contradictory and equivocal. In City of Thomasville v. Crowell, 22 Ga. App. 383 (1b) ( 96 S.E. 335), this court said: "The testimony of a party who offers himself as a witness in his own behalf must be construed most strongly against him, if it be self-contradictory, vague or equivocal."
The defendant in the course of the trial suggested that he did not read the contents of the application or of the catalog and draws the conclusion that he should not be bound by the terms therein. This suggestion is not founded in law, since there is no allegation or proof or suggestion of misrepresentation, fraud or fiduciary relationship. See Ward v. Colt Co., 28 Ga. App. 24 (1) ( 109 S.E. 921) wherein this court said: "It is well settled that one who signs a written contract without reading it can not avoid liability thereon because he was ignorant of its contents, when his signing was not induced by any false representation amounting to fraud on the part of the person with whom he was dealing. Barnes v. Slaton Drug Co., 21 Ga. App. 580 ( 94 S.E. 896); Tinsley v. Gullatt Gin Co., 21 Ga. App. 512 (2) ( 94 S.E. 892)." In Morrison v. Roberts, 195 Ga. 45 ( 23 S.E.2d 164) the Supreme Court said: "Where one who can read signs a contract without apprising himself of its contents, otherwise than by accepting representations made by the opposite party, with whom there exists no fiduciary or confidential relation, he can not defend an action based on it, or have it canceled or reformed, on the ground that it does not contain the contract actually made, unless it should appear that at the time he signed it some such emergency existed as would excuse his failure to read it, or that his failure to read it was brought about by some misleading artifice or device perpetrated by the opposite party, amounting to actual fraud such as would reasonably prevent him from reading it."
The court did not err in directing a verdict for the plaintiff, in view of the record in this case. The above covers the general grounds and one assignment of error in the special grounds.
2. The remaining assignment of error is based on the contention that the judgment of the court sustaining paragraph 2 of the plaintiff's demurrer to the defendant's answer as amended was erroneous in that the defendant and Colonel Brewster rescinded the contract and it is suggested also in the amended motion that there was accord and satisfaction. The plaintiff contends that Colonel Brewster had a conversation with the defendant after the son of the defendant was dismissed. We will quote some of the evidence concerning this contention of the defendant. The defendant testified: "Q. What, if anything did Colonel Brewster tell you at that time? A. He just told me that the school had found fit to expel him and he couldn't attend school there, and I asked him then in return for my money, and he said that I was entitled — that he thought I was entitled to two-thirds or at least half of it back, but it would have to go before the board, and he didn't just up and issue checks; that my money would be mailed to me. Q. Now, what money was he referring to and what money were you referring to? A. I was referring to the $349 I paid him, and I also asked him about my school book money and he asked me to go by the school book store, which I think he said his wife ran, and she would give me my money back. Well, we went by the school book store to get the money back and she said she would mail a check, but we never did receive it. Q. Have you ever received any money whatsoever back from Georgia Military Academy? A. No, sir. Q. Now, Mr. Heath, you have also testified as to another conversation with Mr. Brewster some weeks later, after your boy had been dismissed. Is that right? A. Right. Q. Do you recall that conversation? A. Yes. Q. And you have stated that Colonel Brewster said that he would have to refer this matter to an executive committee. A. Yes, sir. Q. And that's all he promised to do, isn't it, Mr. Heath? A. He said that I — that he thought that I was entitled to at least two-thirds or half of my money back, but it would have to go before the board. Q. That's the extent of what he said? A. That's right. Q. He in no way ever definitely agreed with you to give your money back, did he, Mr. Heath? A. He didn't say he could. Q. Did he say that anybody would? A. He said I was entitled to it. Q. Isn't all he said — Didn't you testify just a minute ago that all he said was that in his opinion you might be entitled to a refund and he would refer it to somebody else? A. That's right."
Cadet Heath, the son of the defendant, testified in part as follows: "Q. Did he ask Colonel Brewster for his money back? A. Yes, sir, he asked him for it. Q. And what did Colonel Brewster respond, if anything? A. He said he couldn't just issue a check, but he thought my father was entitled to half, if not two-thirds of the money he had already paid him." On the same point Colonel Brewster testified in part as follows: "Q. Col. Brewster, you have heard Mr. Heath testify as to an alleged conversation with you concerning the possibility of a refund of the balance of the tuition. Do you recall that conversation? A. I'm not positive about it. It could have taken place. I have so many conversations with people and their sons. It could have taken place. Q. You mean by that, what could have taken place? A. That conversation when he came to pick up his boy to take him home. I think possibly it did, but I have no vivid recollection of that particular conversation. Q. Will you state whether or not, if the conversation took place, that you told Mr. Heath that he would get back part of his tuition? A. I might have told him that I would refer it to the administrative staff, but I would say this: That I have never told anyone, when a boy was dismissed from school or withdrawn from school, unless because of an act of God, that they would get any refund. I have sometimes said that I would refer it to the administrative staff. There are four of us there in executive positions that constitute the staff, and sometimes I do call them in. I don't have to abide by their decision on a particular case, but I sometimes call them in; so there is a possibility that I did tell Mr. Heath that I would refer it to the administrative staff, but under no circumstances did I ever tell anyone that I thought I would personally make a refund, because I have never seen that that was the thing to do. Q. Are you positive of that, Colonel? A. Yes. sir, I am positive."
We thus conclude that there was no promise from Colonel Brewster that a refund would be made and the only promise was to refer the matter to the proper authorities for decision. Cadet Heath was called before the disciplinary committee which committee had authority to make investigation and to decide whether or not the cadet had been guilty of such infraction of rules that he should be dismissed. After a hearing before the disciplinary committee, that committee dismissed Cadet Heath on the basis of admissions which he had made to the committee and from evidence from other sources. The infractions of the rules are set out fully in the record and were ample, under the rules introduced into the record, to authorize dismissal of Cadet Heath. We see no necessity of going into details as to what rules and regulations, or how many times, Cadet Heath violated them during the time he was in Georgia Military Academy.
The court did not commit reversible error in any respect as contended by the defendant.
Judgment affirmed. Carlisle, J., concurs. Townsend, J., concurs in the judgment.