Schwitters v. Des Moines Commercial College , 199 Iowa 1058 ( 1925 )

The appellant Harriet M. Kendall conducted a business college under the name of the Des Moines Commercial College. The plaintiff, appellee, alleging that the appellants had falsely and fraudulently represented to her that "she could 1. FRAUD: false complete a course in shorthand and typewriting, representa- and obtain a position in eight weeks' time, tions: under the expert individual instruction of the matters of defendants' school," sought to recover as prophecy. damages the amount she had paid as tuition.

The representation that appellee could complete the course and obtain a position in eight weeks was no more than a prophecy. It referred only to the future; and its fulfillment, in the very nature of things, depended upon the ability, previous education, industry, and application of the student. The appellee's own testimony showed that she understood this. In a letter which the appellee admitted having received from Miss Kendall before entering the school, she was told:

"You can take this entire course in from eight to twelve weeks."

This statement, standing alone, was not as to an existing fact, but was a mere "puffing," and expression of opinion; and alone was not actionable. Burke v. Berry, 152 Iowa 110; Barr v. Butler, 197 Iowa 575. The further 2. FRAUD: false representation that this result could be representa- accomplished by reason of the expert individual tions: instruction given the students in the school, if furnishing intended as a statement of expert instruction. of fact that such instruction was given, and so understood and relied upon by appellee, would be actionable, if it were shown that such individual instruction was not given. This distinction, however, was not preserved in the instructions to the jury. The instructions permitted a recovery upon a finding that the representation that appellee could complete the course and secure a position in eight weeks, under the expert individual instruction in the school, was false, and was known by appellants to be false, and was relied upon by appellee. The jury may well have understood from this that, even though expert individual instruction was given appellee, yet, if she was unable to complete the course and secure a position in eight weeks, this would establish the falsity of the representation, and warrant a finding of bad faith on the part of the appellants; when the only representation of fact was that such expert individual instruction was given. It was the falsity of this representation of fact that must have been established, to warrant a recovery; not merely the falsity of the opinion or prediction that appellee could complete the course and secure a position in eight weeks' time, — a thing that, as has been said, appellee understood depended on her own ability and effort.

The plaintiff received certain books and supplies, and remained in the school, pursued the course of study, and had the benefit of such facilities and instruction as the school afforded her for five weeks, and then left. It cannot be assumed 3. DAMAGES: that this was of no value, or that she received measure of no benefit from it. Yet the instructions damages: directed that, if she was entitled to deducting recover, the verdict should be for the amount benefits she had paid as tuition, with interest; and this received. the jury awarded her. She was only entitled to her damages, which she alleged was the amount she had paid, after accounting for the reasonable value of the services rendered and supplies furnished her. Van Vliet Fletcher Auto Co. v. Crowell,171 Iowa 64.

The question of the right of the appellee to sue at law without rescinding the contract and returning, or offering to return, what she had received that could be returned, and offering to allow credit for the reasonable value of the instruction she had received, is not before us, and is not determined.

It is unnecessary to consider other errors assigned.

The judgment is — Reversed.

FAVILLE, C.J., and STEVENS, ARTHUR, and De GRAFF, JJ., concur.