{ "id": 8654984, "name": "COLUMBIAN CONSERVATORY OF MUSIC v. J. H. DICKENSON", "name_abbreviation": "Columbian Conservatory of Music v. Dickenson", "decision_date": "1912-03-06", "docket_number": "", "first_page": "207", "last_page": "209", "citations": [ { "type": "official", "cite": "158 N.C. 207" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "124 N. C., 518", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8660132 ], "opinion_index": 0, "case_paths": [ "/nc/124/0518-01" ] }, { "cite": "151 N. C., 30", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 0 }, { "cite": "64 N. C., 335", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8682627 ], "opinion_index": 0, "case_paths": [ "/nc/64/0335-01" ] }, { "cite": "90 N. C., 492", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 0 }, { "cite": "51 N. C., 475", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11278351 ], "opinion_index": 0, "case_paths": [ "/nc/51/0475-01" ] } ], "analysis": { "cardinality": 361, "char_count": 5862, "ocr_confidence": 0.444, "pagerank": { "raw": 8.796075183784779e-08, "percentile": 0.49625344952543565 }, "sha256": "c0a32af1616808df82d9ea3d0ad2582170dbeb4864a20969c0ec186f39d28614", "simhash": "1:be5aa881b3878465", "word_count": 1016 }, "last_updated": "2023-07-14T16:45:05.014249+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Hoke, J\\, concurs in result." ], "parties": [ "COLUMBIAN CONSERVATORY OF MUSIC v. J. H. DICKENSON." ], "opinions": [ { "text": "Beown, J.\nThe pleas of defendant in answer interposed two defenses: first, fraud in procuring the execution of the note and check; second, a failure of consideration.\nHis Honor instructed the jury that there was no evidence of \u2022fraud, which is patent from an examination of the evidence.\nPlaintiff requested the court to instruct the jury upon all the evidence, if believed, to render a verdict for the amount of both note and check. This instruction was refused.\nAll the evidence shows that the note and check were given for a course of musical instruction to be given by mail by plaintiff to defendant\u2019s daughter.\n. She made the application in due form, and received \u00e1 certificate of enrollment or scholarship, which defendant produced on the trial, on notice. Defendant testified that he thought it was a note for $12 and not a check that he had signed, payable 12 April, and that \u201cwhen he found- out, 18 April, that it was a check, he refused to have anything more to do with the instructions or to allow his daughter to take the course.\u201d He admitted that the plaintiff tendered the instructions called for by the contract, and that he refused to allow his daughter to receive them.\n\"We fail to see a partial, much less a total failure of consideration. Although notes as simple contracts require a consideration to support them, it has been long settled that they import a consideration prima facie, so as to throw on the maker the burden to show a want of consideration. McArthur v. McLeod, 51 N. C., 475; Campbell v. McCormac, 90 N. C., 492. In the latter ease Mr. Justice Asbe, quoting from Story and Daniel, says that \u201cIt is wholly unnecessary to establish that a promissory note was given upon a consideration; and the burden of proof rests upon the other party to establish the contrary, and to rebut the presumption of validity and value which the law raises.\u201d\nThe note sued on was given in consideration of an agreement in writing upon the part of the plaintiff to give to defendant\u2019s daughter musical- instruction by mail.\nThe contract was duly-entered into and acted upon for three weeks, the plaintiff furnishing all the contract called for\u2014 music, instructions, lessons, grading, etc.\nThe feasibility of teaching music in a \u201cCorrespondence-School\u201d is beyond our ken, and it is not a question within our domain, but the evidence shows that the plaintiff entered upon the performance of the contract, and its services accepted for three weeks, and then abruptly terminated by defendant because he thought he had signed a note for $12 instead of a check.\nThe excuse is utterly insufficient. Sapona, Co. v. Holt, 64 N. C., 335.\nAs to the amount the plaintiff is entitled to recover under the evidence in this case, that is to be measured by the face of the note, for there is no evidence whatever which warrants the Court in permitting a diminution from the face of the paper. The basis of the action is a special contract to pay so much money, founded, as we have shown, upon valuable consideration, and it must .regulate the plaintiff\u2019s right to recover, as well as the amount. Engine Co. v. Paschall, 151 N. C., 30.\nIt seems to be generally held that in action on a written contract, or a stipulated amount, the contract itself furnishes the measure of damages. 8 A. and E., 636. We find nothing whatever in the case of the Horner School v. Westcott, 124 N. C., 518, which militates against anything which we have here said, as the facts in that case were entirely different.\nThe plaintiff is entitled to the prayer, as requested.\nNew trial.\nHoke, J\\, concurs in result.", "type": "majority", "author": "Beown, J." } ], "attorneys": [ "T. T. Hides for plaintiff.", "J. 0. Kittrell, Thomas M. Pitman, for defendant." ], "corrections": "", "head_matter": "COLUMBIAN CONSERVATORY OF MUSIC v. J. H. DICKENSON.\n(Filed 6 March, 1912.)\n1. Bills and Notes \u2014 Contracts\u2014Consideration\u2014Burden of Proof.\nWhile a promissory note, as a simple contract, requires a consideration, it imports a consideration prima facie, and the burden of proof is on the maker to show its failure, in resisting payment for that reason.\n2. Same \u2014 Breach\u2014Defenses\u2014Legal Excuse \u2014 Fraud\u2014Evidence.\nIn consideration of an agreement of plaintiff to give defendant\u2019s daughter a course of musical instruction by mail, the defendant gave his note in a certain sum in part payment, and after his daughter had received the instruction for a part of the time, resisted its payment upon the ground that as to another payment he thought he was giving a note, while in point of fact it turned out .to be a check: Held, the defense was untenable, there being no evidence of fraud in the contract, which, on its part, the plaintiff stood ready to perform.\n3. Contracts \u2014 interpretation\u2014Consideration\u2014Breach\u2014Measure of Damages.\nWhen the basis of an action is a special contract to pas'- a sum certain, and is founded upon a valuable consideration, the contract sued on, in the absence of fraud, must regulate the right to recover thereon, as well as the measure of damages.\n4. Same \u2014 Diminution of Damages.\nWhen the maker of a promissory note to pay a sum certain, made in consideration of a contract to give a course of musical instruction by mail, by his own act, without legal excuse, and without plaintiff\u2019s default, renders the performance by the plaintiff impossible, the measure of damages, in an action on the note, is the face value thereof, without diminution.\nHoke, X, concurs in result.\nAppeal from Qoolc, J., at October Term, 1911, of Yancey.\nThis was a civil action, commenced before a justice of the peace, and tried on appeal in the Superior Court. ,\nThe action was brought to recover on an unpaid and protested check for $12, and on a note for $33, dated 22 March, 1910, given by defendant to plaintiff, and payable 1 December, 1910, with interest after maturity.\nUnder the charge of the court, the plaintiff obtained verdict and judgment for the amount of the check. Plaintiff appealed.\nT. T. Hides for plaintiff.\nJ. 0. Kittrell, Thomas M. Pitman, for defendant." }, "file_name": "0207-01", "first_page_order": 251, "last_page_order": 253 }