Timmerman v. Stanley , 123 Ga. 850 ( 1905 )

Lumpkin, J.

(After stating the facts.) 1-5. Assuming the allegations of the declaration to be true, as we must do in considering the demurrer, each of the contracts evidenced by the two scholarships was entire, and when the defendant repudiated them the plaintiff had the right to treat his action as a rescission and bring suit for the amount which had been paid by him. Supreme Council v. Jordan, 117 Ga. 808. Or he might sue for a breach of the contract. Ala. Gold Life Ins. Co. v. Garmany, 74 Ga. 51. In the latter event that decision holds that in some cases the amount paid by the plaintiff may be considered in fixing the amount of the damages. In 8 Am. & Eng. Enc. L. (2d ed.) 632 it is said: “As has been said more than once, the fundamental principle of damages is compensation to the injured party. This rule in the present connection is simply the application of the principle stated to contracts — that is, the measure of damages in such cases is the value of the bargain to the complaining party, or a loss which the fulfilment of the contract would have prevented or the breach of it has entailed. Or, as it has been said, the general intent of the law which gives damages in actions for breach of contract is to put the injured party, so far as it can be done by money, in the same position as if the contract had been performed. According to this principle the measure of damages for breach of a contract is not,sas a general rule, the consideration paid, but rather the value of the thing contracted for; unless, indeed, the plaintiff has, under the circumstances, a right to disaffirm the contract, and sue to recover the consideration paid.” The plaintiff can not in the same action both treat the contract as rescinded and rely on it. Harden v. Lang, 110 Ga. 392.

It is not quite easy to determine whether this action is one for breach of the contract, or one for the recovery of the purchase-price of the scholarships, based on the idea of a rescission, coupled with an effort to sue for the breach of the contract in the same action. It has been held that suit to recover the purchase-price is equivalent to an express disaffirmance, and that after such a disaffirmance there can not be a proceeding to enforce the contract, either by an equitable proceeding to compel specific performance, or by an action for damages. 24 Am. & Eng. Enc. L. (2d ed.) 645, and note 5. The plaintiff alleged that the defendant refused to pay back to him .the $64 paid for the scholarships, to which the plaintiff is entitled; and he prays for a judgment of that specific sum, not as damages, or as a part of his damages, or as throwing light on the amount of damages, but as a return of the purchase-money. Taking the pleadings most strongly against the pleader, the statement that the defendant refuses to pay back the amount to him implied that a demand had been made. We are of the opinion, therefore, that this part of the declaration treats the contract as at an end, and seeks to recover the amount paid by the plaintiff to the defendant under it. Such being the case, the particular portion of the declaration which sues for the recovery of such amount is not subject to demurrer on the ground urged against it. It is contended in the brief of counsel for the defendant in error, that there can be no recovery of the amount paid, because in order to rescind the contract the plaintiff must restore the status, and must tender back to the defendant what he has received from him, and that this can not be done in the present case. Civil Code, § 3712. This is a general rule where one party to the contract has received goods, money, or othe^thing of value, which is capable of being returned to the other party. But in a contract like that involved in the present case, where a person agrees to teach another a certain thing, or to qualify him for a pertain position, if he gives the student some instruction and then refuses to complete his contract, there would be no possible way by which such instruction as he had given could be returned or tendered back to him; nor is the other party required to estimate value for what has been done and tender such amount. He can not hold on to the amount paid, refuse to proceed with the contract, and defend against an action to recover the price paid, on the ground that the plaintiff had not tendered back to him his instruction, and could not restore him to the status quo. He can not by his own conduct place himself in a situation where restoration is impossible, repudiate the contract, and set up this situation as a defense to a suit for the amount paid. If he abandons the contract, he should not complain that the other party is willing to treat it as rescinded. The code section cited has no application in such a case. Henderson Warehouse Co. v. Brand, 105 Ga. 217, 224. The cases of Ala. Gold Life Ins. Co. v. Garmany, and Supreme Council v. Jordan, supra, are also in point as to this contention.

It was argued that there was a misjoinder of causes of action; but the demurrer does not make this objection to the entire declaration. It attacks the effort to recover the money paid by the plaintiff to the defendant, on the ground already considered. It then attacks other parts of the declaration, on the ground that, the action being one based on a rescission of the contract, the items of damage claimed could not be properly joined with the suit for the money paid. This contention, if sustained, would result in striking those particular items, but nob in dismissing the entire action for a misjoinder of causes of action. It is not the same thing to say that a declaration contains two inconsistent causes of action, and to put the plaintiff on his election to dismiss one 'bf them or have the entire suit dismissed, and to say that the action is of a particular character, and that certain other claims can not be added to it.

6. From what has been said it is evident that the claim for expenses in attending school, expenses pending the suit, and delay in being prepared for business can not be joined with the action for the return of the purchase-price, based upon a rescission of the contract. Moreover, the allegations of the declaration with respect to those items are quite vague and general, and a part of the damages would not be recoverable even in an action based on a breach of the contract. The dismissal of the entire case was erroneous. The claim to recover the items of damage just referred to should have been stricken, and the case left to stand on the suit for the return of the price paid for the scholarships.

7. It does not affirmatively appear that there was a written contract, and the ground of the demurrer that no copy of it was attached as an exhibit is not well founded.

Judgment reversed, with directions.

All the Justices concur, except Simmons, G. J, absent.