61 Ark. 564 | Ark. | 1896
(after stating the facts). The first question is, did the court have jurisdiction, and was the question of jurisdiction properly raised ? The majority of the court is of the opinion that the allegation in the complaint that the appellee was damaged by the alleged breach of contract in the sum of two hundred dollars was a firima facie showing of jurisdiction, and that, in the absence of any special plea to the want of jurisdiction, or any charge in the answer that said allegation of the complaint was illusive, and made merely for the purpose of giving jurisdiction in fraud of the constitutional jurisdiction, the court was correct in not dismissing the cause for the want of jurisdiction. Heilman v. Martin, 2 Ark. 158; Dillard v. Noel, id. 449; Watkins v. Brown, 5 id. 197. I do not, however, concur in this view, under the allegations of the complaint. See authorities in note.
2. The court erred in instructing the jury that appellee’s measure of damages in case of recovery was thirty-five dollars. Even if the proof sustained the finding of the jury that the contract was for a scholarship which embraced the whole course in bookkeeping, and even if it justified the finding .that a scholarship gave to its owner the privilege of returning, ad libitum et in invitum, to finish the course, still the contract, in that view, had been already partly performed by the appellant, in furnishing to appellee instruction in the whole course of bookkeeping except banking, and in furnishing him books and stationery. The appellee had already received the larger part of what his contract called for. Then, what was the proper measure of its breach? Clearly, the difference between what he had paid and what he would have had to pay to have the contract fulfilled as he understood it, i. e., the difference between thirty-five and fifty dollars. According to the undisputed proof, when appellee returned to the college in the spring of 1893, and asked to be permitted to finish the course, by paying fifteen dollars he could have received all that he asked for, and all that he says he thought he was getting under the contract. This is his measure of damages, if he is damaged at all; for, while he alleged damages in the sum of two hundred dollars, there was no proof to show any special damages, and none were asked on the trial. But there is nothing in this record to show that appellee wTas damaged at all. We have been unable to discover the proof that the contract was really made as the appellee says he “thought” it was. Contracts cannot be established by suppositions. The appellee does not sustain the allegation of his complaint that, at the time the contract was made, “there was an express agreement that he should have the privilege of re-entering said college at any time after the expiration of three months, and completing the course of bookkeeping without additional expense.” On the contrary, he shows that he and appellant had no conversation about the scholarship, and the positive proof on behalf of appellant is that he never sold appellee a scholarship, and never had an agreement with him “that he might return and complete this course at any time.” It was in evidence that the appellant said “his regular price for scholarship in bookkeeping was forty dollars for the course, but he offered the term for thirty-five dollars, including books and stationery.” If it could be inferred from this that appellee purchased a scholarship, or that “term” and “scholarship,” as used here, meant the same thing, still, there is no proof that a scholarship or term conferred upon its holder the right to come and go at will. On the contrary, it appears that the “average time” for a bookkeeping course was sixteen weeks, and the positive proof of the appellant was that “a scholarship did not permit any student to go away and return at his will.” There was evidence that “the life scholarship” gave the privilege of attending “until he mastered his chosen department,” but not that he could come and go just as it suited him. It conferred upon the owner “the privilege of returning and reviewing at any time,” but not to complete an unfinished course at any time. The appellee sues for a breach of contract. His proof should not have come short of showing every essential element to constitute the breach. It should have shown both the terms of the contract and the manner of its breach. The burden was upon him on all these points, and he failed to meet it with evidence which is legally sufficient.
The cause is reversed, and remanded for a new trial.
Am. & E. Enc. Eaw, p. 309, note 1; Berry v. Linton, 1 Ark. 252; Fisher v. Hall, id. 275; Wilson v. Mason, 3 id. 494; Crabtree v. Moore, 7 id. 74; Collins v. Woodruff, 9 id. ^66.
