{
  "id": 8622787,
  "name": "FAIRMONT SCHOOL, INC., v. MRS. JAMES E. BEVIS",
  "name_abbreviation": "Fairmont School, Inc. v. Bevis",
  "decision_date": "1936-04-29",
  "docket_number": "",
  "first_page": "50",
  "last_page": "52",
  "citations": [
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      "type": "official",
      "cite": "210 N.C. 50"
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  "court": {
    "name_abbreviation": "N.C.",
    "id": 9292,
    "name": "Supreme Court of North Carolina"
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    "name_long": "North Carolina",
    "name": "N.C."
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      "category": "reporters:state_regional",
      "reporter": "S.E.",
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    },
    {
      "cite": "167 N. C., 270",
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      "reporter": "N.C.",
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    {
      "cite": "46 S. E., 490",
      "category": "reporters:state_regional",
      "reporter": "S.E.",
      "opinion_index": 0
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    {
      "cite": "134 N. C., 220",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
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      "case_paths": [
        "/nc/134/0220-01"
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  "last_updated": "2023-07-14T17:57:05.250790+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "FAIRMONT SCHOOL, INC., v. MRS. JAMES E. BEVIS."
    ],
    "opinions": [
      {
        "text": "Connor, J.\nThe 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 \u201cNo.\u201d\nIn Dickens v. Perkins, 134 N. C., 220, 46 S. E., 490, it is said: \u201cAn 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.\u201d See C. S., 582.\nFor 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\u2019s recovery in this action. See Horner\u2019s Military School v. Rogers, 167 N. C., 270, 83 S. E., 345.\nNew trial.",
        "type": "majority",
        "author": "Connor, J."
      }
    ],
    "attorneys": [
      "Edgar W. Pharr and McDougle & Ervin for plaintiff.",
      "Guthrie, Pierce & Blahmey for defendant."
    ],
    "corrections": "",
    "head_matter": "FAIRMONT SCHOOL, INC., v. MRS. JAMES E. BEVIS.\n(Filed 29 April, 1936.)\n1. Trial F b\u2014\nWhere 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.\n2. Schools B b \u2014 Inadequacy of accommodations and board to maintain health held defense to school\u2019s action to recover tuition.\nIn an action by a private school to recover the balance due for tuition and board of defendant\u2019s 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\u2019s daughter to become such that she was unable to attend school but for half the year, submitted to the jury.\nAppeal by plaintiff from Finley, Emergency Judge, at October Special Term, 1935, of MecxleNbueg.\nNew trial.\nTbis 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.\n,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 \u00f3n 3 January, 1933, and on 1 February, 1933.\nIn ber answer tbe defendant admits that she entered into the contract with the plaintiff, as alleged in the complaint. In defense of plaintiff\u2019s recovery in this action she alleges:\n\u201c1. That the defendant allowed her daughter, Mildred Young, to attend plaintiff\u2019s 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\u2019s 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.\n\u201c2. That the defendant\u2019s daughter became physically unable to continue to attend plaintiff\u2019s school, and came to defendant\u2019s home in Charlotte, N. C., during the Christmas holidays of 1932; that defendant\u2019s said daughter was physically unfit to remain in plaintiff\u2019s school at the time she left for the defendant\u2019s home in Charlotte, and that she remained in a weak and disabled physical condition for several months' after she returned to defendant\u2019s home in Charlotte; that the physicians who attended defendant\u2019s daughter advised the defendant that they could not approve of her daughter\u2019s 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\u2019s school after the Christmas holidays of 1932; and that thereafter defendant\u2019s daughter did not return to said school, nor has she since that time attended the said school for any length of time whatsoever.\n\u201c3. That defendant is advised and believes that her daughter\u2019s 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\u2019s daughter; that the plaintiff failed to provide the proper nourishment for her daughter\u2019s health and welfare; and that the plaintiff failed to care for and provide for the health and development of defend-. ant\u2019s daughter as the plaintiff was under duty to do so long as defendant\u2019s daughter remained in plaintiff\u2019s 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\u2019s illness as herein mentioned.\u201d\nAt 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:\n\u201c1. Was there a contract entered into between the plaintiff and the defendant, as alleged in the complaint ? Answer: .\n\u201c2. Did the defendant wrongfully breach the contract, as alleged in the complaint? Answer: .\n\u201c3. Did the plaintiff fail to comply with the terms of the said contract, as alleged in the answer ? Answer: .\n\u201c4. What amount, if any, is the plaintiff entitled to recover of the defendant? Answer: .\nThe jury answered the first issue \u201cNo,\u201d and under instructions of the court that in that event they need not answer the other issues, did not answer said issues.\nFrom 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.\nEdgar W. Pharr and McDougle & Ervin for plaintiff.\nGuthrie, Pierce & Blahmey for defendant."
  },
  "file_name": "0050-01",
  "first_page_order": 116,
  "last_page_order": 118
}