#### FAIRMONT SCHOOL, INC., v. MRS. JAMES E. BEVIS.

(Filed 29 April, 1936.)

1. Trial F b—

Where the contract sued on is admitted in the answer, an issue as to the existence of the contract does not arise upon the pleadings, and it is error for the court to submit such issue to the jury. C. S., 582.

2. Schools B b — Inadequacy of accommodations and board to maintain health held defense to school’s action to recover tuition.

In an action by a private school to recover the balance due for tuition and board of defendant’s daughter for the school year, in accordance with the contract between the parties, defendant is entitled to have her defense that the accommodations and board furnished were inadequate to maintain health, and caused the physical condition of defendant’s daughter to become such that she was unable to attend school but for half the year, submitted to the jury.

Appeal by plaintiff from Finley, Emergency Judge, at October Special Term, 1935, of MecxleNbueg.

New trial.

Tbis is an action to recover tbe sum of $500.00, tbe balance due on a contract by wbicb tbe defendant agreed to pay to tbe plaintiff, for tbe tuition and board of ber daughter, for tbe school year 1932-1933, tbe sum of $1,000.00, said sum being due and payable as follows: On 26 September, 1932, $250.00; on 1 November, 1932, $250.00; on 3 January, 1933, $250.00; and on 1 February, 1933, $250.00.

,It is alleged in tbe complaint and admitted in tbe answer that tbe defendant has paid to tbe plaintiff tbe sums due on 26 September, 1932, and on 1 November, 1932, and has failed and refused to pay tbe sums due ón 3 January, 1933, and on 1 February, 1933.

*51In ber answer tbe defendant admits that she entered into the contract with the plaintiff, as alleged in the complaint. In defense of plaintiff’s recovery in this action she alleges:

“1. That the defendant allowed her daughter, Mildred Young, to attend plaintiff’s school during the fall term of 1932-1933; that her said daughter attended the said school for less-than one-half of the school year, and that the defendant has paid to the plaintiff the sum of $500.00 to cover tuition for the said portion of the academic year during which the defendant’s daughter attended said school, the said sum of $500.00 having been paid by the defendant to the plaintiff over and above certain other amounts not included in the tuition fee as aforesaid.

“2. That the defendant’s daughter became physically unable to continue to attend plaintiff’s school, and came to defendant’s home in Charlotte, N. C., during the Christmas holidays of 1932; that defendant’s said daughter was physically unfit to remain in plaintiff’s school at the time she left for the defendant’s home in Charlotte, and that she remained in a weak and disabled physical condition for several months' after she returned to defendant’s home in Charlotte; that the physicians who attended defendant’s daughter advised the defendant that they could not approve of her daughter’s return to school; that on account of the physical condition of her said daughter, the defendant notified the plaintiff that her daughter could not return to plaintiff’s school after the Christmas holidays of 1932; and that thereafter defendant’s daughter did not return to said school, nor has she since that time attended the said school for any length of time whatsoever.

“3. That defendant is advised and believes that her daughter’s illness was due to the fact that the plaintiff did not provide her with proper food and with a warm and comfortable place in which to live; on the contrary, the defendant avers that the plaintiff failed to keep its dormitories warm enough to be sufficiently comfortable and healthful for defendant’s daughter; that the plaintiff failed to provide the proper nourishment for her daughter’s health and welfare; and that the plaintiff failed to care for and provide for the health and development of defend-. ant’s daughter as the plaintiff was under duty to do so long as defendant’s daughter remained in plaintiff’s school as a student; and the defendant further avers that this lack of attention and failure to provide her daughter with necessary care and protection was the cause of her daughter’s illness as herein mentioned.”

At the trial of the action, over the objections and subject to the exceptions of the plaintiff, the court submitted to the jury the following issues:

“1. Was there a contract entered into between the plaintiff and the defendant, as alleged in the complaint ? Answer: .

*52“2. Did the defendant wrongfully breach the contract, as alleged in the complaint? Answer: .

“3. Did the plaintiff fail to comply with the terms of the said contract, as alleged in the answer ? Answer: .

“4. What amount, if any, is the plaintiff entitled to recover of the defendant? Answer: .

The jury answered the first issue “No,” and under instructions of the court that in that event they need not answer the other issues, did not answer said issues.

From judgment that plaintiff recover nothing of the defendant, the plaintiff appealed to the Supreme Court, assigning as error the submission by the court to the jury of the first issue.

Edgar W. Pharr and McDougle & Ervin for plaintiff.

Guthrie, Pierce & Blahmey for defendant.

Connor, J.

The defendant in her answer admitted the contract sued on by the plaintiff, as alleged in the complaint. No issue was raised by the pleadings with respect to the contract. For that reason, it was error for the court to submit to the jury, over the objection of the plaintiff, the first issue, and to charge the jury that the defendant contended that they should answer the issue “No.”

In Dickens v. Perkins, 134 N. C., 220, 46 S. E., 490, it is said: “An issue of fact as defined by the Code arises upon the pleadings when a material fact is alleged or maintained by one party and controverted by the other. Code, sec. 391.” See C. S., 582.

For the error in submitting to the jury the first issue, the plaintiff is entitled to a new trial. The defendant is entitled to have the jury determine the facts on which she relies for her defense to plaintiff’s recovery in this action. See Horner’s Military School v. Rogers, 167 N. C., 270, 83 S. E., 345.

New trial.