96 Vt. 13 | Vt. | 1922
This is an action in contract brought to recover the balance claimed to be due for the tuition and board of the defendant Aleñe Gilman, at the plaintiff school, under a written contract providing for a year’s tuition, board and incidentals, for the inclusive sum of $600.
During the course of the trial, the defendant offered evidence tending to show that the accommodations -and board at the plaintiff school were not as they were represented to be in the catalog which had been furnished to defendant, prior to the making of the contract, and claimed that in this there was misrepresentation on behalf of the plaintiff, by which the defendant had been induced to enter into the contract for the tuition and board of Aleñe. Objection being made by the plaintiff upon the ground that this evidence was not admissible under the general issue, the court permitted the defendant to file further pleadings, and thereupon there was filed the general issue with notice of special matter in defense, in effect that the contract was induced by misrepresentations on behalf of the plaintiff concerning the accommodations, board and privileges accorded by the school to prospective scholars. An exception was taken by the plaintiff to the allowance of this amendment, and the evidence introduced thereafter by the defendant, with reference to the matters mentioned in the notice, was also received under exception.
It is not necessary to determine the validity of these exceptions. As will appear, the case must be disposed of upon a different ground, and the questions raised here are not likely to arise again. It is true that the case of Dernier v. Rutland, etc., Power Co., 94 Vt. 187, 110 Atl. 4, is authority to the effect that under the Practice Act, as it was at the time of that decision, two or more defenses, inconsistent in point of fact, could not be pleaded; and that there was no longer such a thing as the general issue with notice. But since this decision was handed down, the Practice Act has been amended by the enactment of No. 72, Acts 1921, by section 1 of which inconsistent defenses may be pleaded. How far that act operates to abrogate the holding in the Dernier case with respect to the general issue with notice need not now be considered; for if there is any defect in the form of the plea, as filed, this may be remedied by an appropriate amendment.
"What has been said applies equally, of course, to the questions of the allowance of the amendment and of the admissibility of the evidence offered and received thereunder.
The court submitted to the jury certain only of the claimed defaults on the part of the plaintiff. These were as to the course in Spanish; as to the board furnished to the pupils; as to the rooms occupied by them; and as to attention given to Miss Gilman. The statements in the catalog, so. far as material to these subjects, were as follows:
In the course of elective studies for the general course in the junior (or third) year, Spanish is listed as a five hour subject. The general course, it was stated, “is arranged for those who do not intend going to "college; with the exception of English, which is required of all, the studies are almost entirely elective * # * *. A student is allowed to select with the consent of her parentsj those studies which she may desire.
“The students’ rooms are large, well furnished, and most attractive. Each girl has her individual bed, bureau and clothes’ closet. Pupils will be encouraged to use their own taste and give expression to their own individuality in the decoration of their rooms. Mount Ida is distinctly a home, and the girls will be looked upon as daughters of the household.”
“The instruction is thorough and given in a way to meet the needs of the individual pupil. Students who through sickness or loss of time from various causes have fallen behind in their work, will find it possible at the Mount Ida School to re
A careful examination of the catalog fails to reveal any mention of the quality of the table board to be furnished the scholars, but upon this subject the court instructed the jury that under the contract Miss Gilman “was entitled to have that phase of the school life fairly met, reasonably met, justly met.5 ’ This, it is believed, was equivalent to saying that the table board was required to be of reasonably good quality.
The defendant’s evidence tended to show that the room assigned Miss Gilman was not a corner room and was very small, and was furnished with two small cot beds and two bureaus, which were on the style of camp furniture, stained green, two straight chairs, two small rocking chairs, one commode and one round table. There was one light and one window facing north, through which no sunlight entered the room. The wall paper was faded and there were holes in it where previous occupants of the room had driven nails. The furniture showed the marks of usage, and the knobs were off the bureau drawers.
The evidence of the defendant respecting the alleged lack of attention given to Miss Gilman tended to show that the latter Avas unable to get boobs for the courses in bookkeeping, business management and shorthand, although she had been informed that they were procurable at the school office; that one of the teachers, with whom she had had some correspondence, and interviews previous to coming to the school, paid no attention to her; that no member of the faculty gave her any personal attention, although it was known that she was behind in her studies; that the assistant principal “was very cool and she didn’t take any interest at all.”
The defendant’s evidence as to the table board was to the effect that the food was cold; that for breakfast there was served cereal, muffins, and coffee; for dinner, sausage, salad, or stew. Butter was- not always served. The soup was made Avith carrots, Avhich Miss Gilman did not like.
Miss Gilman testified that she wanted to take the secretarial course, which included typeAmting, bookkeeping, business methods and management, and Spanish. She had some knowledge of this language and desired to take the advanced course, offered as an elective in the junior year of the general course. The superintendent, hoAvever, told her that she could not take Spanish.
Judgment reversed and catise remanded.