Riverside Academy v. Urigh

Jenkins, P. J.

(After stating the foregoing facts.)

“If one of two contracting parties claims that the other has committed a breach of the contract, he can not in the same action both treat the contract as rescinded and sue for the amount paid by him to the other party, and at the same time rely on the contract as existing.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of the declaration make it a suit for the amount paid to the defendant by the plaintiff, treating the contract as rescinded.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.” Timmerman v. Stanley, 123 Ga. 850 (2, 3), 853 (51 S. E. 760, 1 L. R. A. (N. S.) 379). As stated in that case, the ground of demurrer was that the expense items “are inconsistent with'the damages laid in the paragraph seeking to recover the purchase-price of the scholarships, and can not be joined in the same action;” the demurrer Avas not “for misjoinder of causes of action, so as to put the defendant upon his election, but Avas for inconsistency' in joining certain claims with another, AA'hich had first been made and Avhich it Avas claimed determined the character of the action.” In the instant case there was no ground of demurrer for either misjoinder or inconsistency in joining claims. The jury, hoAvever, found for the plaintiff $359, and allowed neither of the items claimed for expenses. Thus, irrespectiA'e of whether or not the attack of the demurrers upon these items Avas properly made and Avas meritorious, the overruling of such grounds of demurrer, as well as the court’s refusal to charge that the plaintiff could not recover these items, Avas in any event harmless to the defendant.

While it is true that, “AA'here a party gives a reason for his conduct and decision touching anything involved in a controversy, he can not, after litigation has begun, change his ground and put his conduct upon another and different consideration” (Fenn v. Ware, 100 Ga. 563, 566, 28 S. E. 238; Cowdery v. Greenlee, 126 Ga. 786, 789, 55 S. E. 918, 8 L. R. A. (N. S.) 137; Tuggle v. Green, 150 Ga. 361 (2), 370, 104 S. E. 85; Frank & Meyer Neckwear Co. v. White, 29 Ga. App. 694 (3), 695, 116 S. E. 855), still, as Avas held by this court in Union Brokerage Co. v. Beall, 30 Ga. App.. 748 (1) (119 S. E. 533), this rule “is but an application of the principle of estoppel in pais, and applies only Avhere his conduct has caused another to act respecting the matter to the injury and detriment of the latter, and Avhere the latter avouIc! be placed at an inequitable disadvantage should the former be allowed to rely upon a ground other than that urged as a reason for his conduct and decision in the matter;” and consequently the principle has no application in the instant case so as to limit the plaintiff’s reasons for removing his son from the school to homesickness, merely because the son’s mother, on October 15, before he had left the school and before either she or the plaintiff Avas shown to have been apprised of any actual conditions, Avrote to the school, “I am afraid he is somewhat homesick, or some one has given him a very wrong impression since he has been up there.” Nor would the fact that the boy went home on a telegram addressed to him, and not to the defendant, saying that she was lierself sick, limit such reasons to the sickness of the mother, where the plaintiff, after the boy’s return, advised the defendant that he had withdrawn the boy for certain other reasons assigned. There was no error, under the evidence, in refusing to charge in effect .the principle stated. Moreover, it appears, under certain evidence, that the boy himself before leaving school, and the mother after his return home, complained of the crowded rooming arrangements, on account of which the plaintiff claims he was justified in rescinding the' contract.

The language of the court in referring to the action as “a suit brought by the plaintiff to recover for a breach of the contract,” and in charging that, “if you believe from the evidence there was a breach of the contract by” the defendant, “the plaintiff would be entitled to recover such damages as he may have, sustained by reason of that breach,” while inapt’ in thus referring to what was in the nature of an action of assumpsit for the recovery of money had and received, could not- reasonably have been prejudicial to the defendant, where the court correctly stated the essential averments and contentions of the parties with reference to the action, as set forth in their respective pleadings, with the law applicable to the case thus made. Nonperformance by a party of his covenants is a statutory ground of rescission (Civil Code of 1910, § 4306), and was the basis.here relied upon. Such “nonperformance” by the defendant, while not technically a “breach of contract” where the contract was for that reason and before performance rescinded by the defendant, in popular understanding was so similar to such a “breach” that the jury could not have been injuriously affected by such expressions.

' Nor was the charge quoted or a like instruction complained of erroneous for the'further reason assigned, that they were not qualified by the exception that such a breach should not have been “occasioned by the conduct, fault, or negligence of the plaintiff, or whether plaintiff by his conduct occasioned said breach, or whether plaintiff afforded defendant any opportunity of complying with said contract after plaintiff complained of said alleged breach.” Even if such an exception were warranted by the evidence, and were an accurate statement of legal principles, such a qualification was not required in the absence of a written request to give it in charge.

The defendant in its catalogue, relied upon by the plaintiff and his son under their evidence, had stated that there would be “comfortable quarters,” and that “each cadet has a single iron bed, . . half of a large, polished oak table, three drawers of a chiffonier, and half of a large closet.” While other contentions of the plaintiff with reference to crowded accommodations at the school, such as requiring the plaintiff’s son to be in a room with three other boys, or in reference to lavatories and baths, were not sustained by any evidence showing anything contrary to what was stated in the catalogue under the price paid by the plaintiff, the jury were authorized from the evidence for the plaintiff to find that (on account of the failure of the defendant to complete its new dormitory as soon as it had anticipated) the accommodations furnished to the plaintiff’s son, with reference to bed, table for books and study, drawers of chiffonier, and closet for clothing, were not as stated and relied upon under the catalogue, and therefore they were authorized to return the verdict rendered.

The defendant can not complain that the amount of the verdict was less than the full amount paid in by the plaintiff, it appearing that the jury of their own motion deducted from this sum an amount for board and tuition covering the week or ten days which the plaintiff’s son had spent at the school.

Judgment affirmed.

Stephens and Bell, JJ., concur.