Brenner v. Little Red School House, Ltd.

Court of Appeals of North Carolina

Brenner v. Little Red School House, Ltd.

266 S.E.2d 728, 47 N.C. App. 19, 1980 N.C. App. LEXIS 2980

CourtCourt of Appeals of North Carolina

DecidedJune 3, 1980

DocketNo. 7918DC1141

StatusPublished

This text of 266 S.E.2d 728 (Brenner v. Little Red School House, Ltd.) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Brenner v. Little Red School House, Ltd., 266 S.E.2d 728, 47 N.C. App. 19, 1980 N.C. App. LEXIS 2980 (N.C. Ct. App. 1980).

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Opinions

WEBB, Judge.

We hold the court erred in granting the plaintiffs motion for summary judgment and in not granting the defendant’s motion to dismiss pursuant to G.S. 1A-1, Rule 12(b) (6). The complaint shows plaintiff entered into a contract under the terms of which tuition was payable in advance and not refundable. The terms of the contract are not ambiguous and the courts are bound to enforce it as written. See Loving Co. v. [21]*21Contractor, Inc., 44 N.C. App. 597, 261 S.E. 2d 286 (1980) and Weyerhaeuser v. Carolina Power and Light Co., 257 N.C. 717, 127 S.E. 2d 539 (1962).

The appellee contends the contract should be rescinded because of frustration and impossibility of performance. There was not a fundamental change in conditions so that if the child had attended the school, the object for which the contract had been made would not have been attained. This makes the doctrine of frustration inapplicable. See McCay v. Morris, 46 N.C. App. 791, 266 S.E. 2d 5 (1980). Nor do we believe impossibility of performance applies. Impossibility of performance is recognized in this jurisdiction as excusing a party from performing on an executory contract if the subject matter of the contract is destroyed without fault by the party who wishes to be excused from performance. That is not the situation in the case sub judice. The defendant was able to perform. It had saved a place in the school for plaintiffs child. When the plaintiff was unable to deliver the child to the school, this did not constitute impossibility of performance. See Sechrest v. Furniture Co., 264 N.C. 216, 141 S.E. 2d 292 (1965). We believe our holding in the case sub judice is consistent with prior cases in this jurisdiction, Horner School v. Wescott, 124 N.C. 518, 32 S.E. 885 (1899) and Bingham v. Richardson, 60 N.C. 215 (1864) and the majority of jurisdictions in this country. 69 A.L.R. 714 (1930).

The plaintiff also contends he should be relieved from the terms of the contract because it is unconscionable. There was not a disparity of bargaining power between the parties in this case. The plaintiff could have chosen some other school for his child. He entered into a contract which provided there would not be a refund. This was a reasonable requirement in view of the expense to defendant in preparing for the child and holding a place for him. We hold this provision of the contract is not unconscionable.

The plaintiff argues further that the contract should not be enforced because by requiring the forfeiture of the tuition, it provides for a penalty rather than liquidated damages. The difficulty with this argument is that the defendant is not asking [22]*22for damages. It is asking that the contract be enforced as written. We hold that it is not unreasonable for the defendant to require payment in advance with no refund in order for the defendant to prepare and hold a place in the school for plaintiffs child.

The plaintiffs last argument is that the headmistress of the school promised to refund the tuition and the failure to do so is a breach of contract by the defendant. Assuming the headmistress was acting within her authority, this promise is unenforceable as being without consideration.

The plaintiff has entered into a contract which is not ambiguous. He is bound by its terms. The defendant’s motion to dismiss should have been allowed. We reverse and remand for a judgment consistent with this opinion.

Reversed and remanded.

Judge Wells concurs. Judge Martin (Harry C.) dissents.

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WEBB, Judge.

We hold the court erred in granting the plaintiffs motion for summary judgment and in not granting the defendant’s motion to dismiss pursuant to G.S. 1A-1, Rule 12(b) (6). The complaint shows plaintiff entered into a contract under the terms of which tuition was payable in advance and not refundable. The terms of the contract are not ambiguous and the courts are bound to enforce it as written. See Loving Co. v. [21]*21Contractor, Inc., 44 N.C. App. 597, 261 S.E. 2d 286 (1980) and Weyerhaeuser v. Carolina Power and Light Co., 257 N.C. 717, 127 S.E. 2d 539 (1962).

The appellee contends the contract should be rescinded because of frustration and impossibility of performance. There was not a fundamental change in conditions so that if the child had attended the school, the object for which the contract had been made would not have been attained. This makes the doctrine of frustration inapplicable. See McCay v. Morris, 46 N.C. App. 791, 266 S.E. 2d 5 (1980). Nor do we believe impossibility of performance applies. Impossibility of performance is recognized in this jurisdiction as excusing a party from performing on an executory contract if the subject matter of the contract is destroyed without fault by the party who wishes to be excused from performance. That is not the situation in the case sub judice. The defendant was able to perform. It had saved a place in the school for plaintiffs child. When the plaintiff was unable to deliver the child to the school, this did not constitute impossibility of performance. See Sechrest v. Furniture Co., 264 N.C. 216, 141 S.E. 2d 292 (1965). We believe our holding in the case sub judice is consistent with prior cases in this jurisdiction, Horner School v. Wescott, 124 N.C. 518, 32 S.E. 885 (1899) and Bingham v. Richardson, 60 N.C. 215 (1864) and the majority of jurisdictions in this country. 69 A.L.R. 714 (1930).

The plaintiff also contends he should be relieved from the terms of the contract because it is unconscionable. There was not a disparity of bargaining power between the parties in this case. The plaintiff could have chosen some other school for his child. He entered into a contract which provided there would not be a refund. This was a reasonable requirement in view of the expense to defendant in preparing for the child and holding a place for him. We hold this provision of the contract is not unconscionable.

The plaintiff argues further that the contract should not be enforced because by requiring the forfeiture of the tuition, it provides for a penalty rather than liquidated damages. The difficulty with this argument is that the defendant is not asking [22]*22for damages. It is asking that the contract be enforced as written. We hold that it is not unreasonable for the defendant to require payment in advance with no refund in order for the defendant to prepare and hold a place in the school for plaintiffs child.

The plaintiffs last argument is that the headmistress of the school promised to refund the tuition and the failure to do so is a breach of contract by the defendant. Assuming the headmistress was acting within her authority, this promise is unenforceable as being without consideration.

The plaintiff has entered into a contract which is not ambiguous. He is bound by its terms. The defendant’s motion to dismiss should have been allowed. We reverse and remand for a judgment consistent with this opinion.

Reversed and remanded.

Judge Wells concurs. Judge Martin (Harry C.) dissents.

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266 S.E.2d 728, 47 N.C. App. 19, 1980 N.C. App. LEXIS 2980, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brenner-v-little-red-school-house-ltd-ncctapp-1980.

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