| Oh. Circ. Ct., Hamilton | Jan 29, 1910
The plaintiff in error in his petition claimed that the defendant in error had placed his son in his school for one year and had agreed to pay to him for tuition and board for that year $1,200; that of this amount $600 has been paid and there was still due from the defendant in error the remaining sum, $600.
The defendant in error denied this agreement and claimed that the contract was for the first part of theoschool year from September 30, 1907, to January 31, 1908, for which he had paid plaintiff in error .said $600. He also set up as a defense that he did not return his son to the school of plaintiff for the latter part of the year for the reason that by an act of God, to-wit, the serious illness of his son, he had been prevented from sending him; and thereby the contract was disehargted, if it was for a full year.
Whatever the contract was between the parties, whether for the entire school year or for a shorter period, it is apparent that the same was not in writing and had to be determined by the jury from all the facts, words, acts, conduct and circumstances surrounding the parties at the time. Both questions as to what the contract was and whether the contract was discharged by act of God were submitted to the jury and a verdict returned in favor of the defendant.
If the sole question had been before the jury as to what the contract was between the parties then the ease might easily be disposed of, but the second defense having been interposed, it is difficult to say which defense or whether both defenses were found in favor of defendant in error by the jury.
The evidence clearly shows that the son was not returned to school by defendant in error on account of his serious illness. This was something over which neither plaintiff nor the defendant had control and such an occurrence must have been in the minds of the parties at the time the agreement was made if it was made for one full school year. They both must have acted upon the assumption that if any such event intervened whereby the boy was rendered physically incapable of attending the school, then the agreement for the full school year would be discharged. Death or a disability which renders performance impossible discharges the contract. Marvel v. Phillips, 162 Mass., 399" court="Mass." date_filed="1894-11-28" href="https://app.midpage.ai/document/marvel-v-phillips-6425076?utm_source=webapp" opinion_id="6425076">162 Mass., 399; Stewart v. Loring, 5 Allen, 306.
We do not think the .authorities cited by plaintiff in error are applicable to the case at bar, but believe the rule as laid down in the above cases, and in our conclusion herein, to be the more reasonable. We find no error in the record and the judgment of the court is therefore affirmed.