92 Neb. 430 | Neb. | 1912
This case is before us a second time. Our opinion upon the former hearing may be found in 82 Neb. 403. For a statement of the controversy reference is made to that opinion. It is sufficient, for the purpose of this opinion, tb state that plaintiff conducts a correspondence school; that defendant entered into a contract with it to take its course of instruction in electrical engineering, for which he was to pay $78 in monthly payments of $2, less 10 per cent., and plus $1 for a transfer fee; that he continued his monthly payments until he had paid about $50, when he ceased making such payments, and subsequently notified the agent of plaintiff that he did not intend to carry out the contract. The books and papers necessary to commence his studies were sent to him by plaintiff, and we gather from his testimony that they are still in the box in which they were shipped to him. However that may be, he never entered upon the studies.
Upon the former hearing we held that the district court erred in instructing the jury that, if plaintiff was entitled to a verdict, the measure of its recovery would be the loss of its profit on its contract, plus the value of the services it had rendered defendant. The reason given for our holding was: “It will be observed that plaintiff has not been in default in any particular in performing, so far as defendant would permit it to perform, the contract; that its undertaking is to continue its course of instruction until it has educated defendant to sucli a degree of proficiency as to entitle him to a diploma. No one can logically establish the period during which its teachers must send out questions and correct answers given by defendant, in response thereto. The evidence indicates that plaintiff employs nearly 400 teachers, and the addition or loss of one student would hardly increase or diminish plaintiff’s expense to any perceptible degree. The contract is entire, and, upon defendant’s refusal to perform, and subsequent to the maturity of all of the monthly
The only evidence offered upon that point is the testimony of Professor Stout, of the University of Nebraska, and Mr. Penny, an assistant in the office of the state superintendent. Professor Stout testified as follows: “Q. Do you know anything about the nature of the papers usually sent out by correspondence schools * * * in teaching electrical engineering? A. I do not recall that I have ever seen any of the electrical engineering papers. Q. Do you know the usual papers sent out to students, the class of paper, the style of questions asked, the amount of questions asked as a general thing in the papers sent out by correspondence to those students? A. Taking the question on a general basis that way, I would say that I do not know. M.y observation is limited to comparatively few papers. Q. Do you know how long it takes a competent person to examine the answers sent to questions asked in one of those papers? A. For an unqualified answer, I think I would have to answer no.” On cross-examination, his testimony was: “I meet classes day after day in the higher branch of civil engineering. I have nothing to do with electrical engineering at all. My experience is based on the four-years’ course of instruc
In 2 Sedgwick, Damages (9th ed.) sec. 612, it is said: “In some cases the plaintiff may recover the whole contract price. A common case is that of a schoolmaster. If a scholar is removed from the school during the quarter,
After having examined two records made by the parties in this case, we are unable to discover any theory upon which defendant can escape his liability to plaintiff for the balance due under his contract. The contract is entire. Plaintiff has at all times been ready, and is still ready, and willing to carry out its part. Defendant has shown no good reason why he should not do the same. The litigation should end. The judgment of the district court is therefore reversed and the cause remanded, with directions to that court to enter judgment in favor of the plaintiff for $22.50, with interest from the time of the commencement of the suit in that court.
Reversed.