The eastern clarion. [volume] (Paulding, Miss.) 1837-1863, 1860-04-18
DECISIONS OF TIE HIGH ccUR7
lErroE1zp ErrEEszrr fos en- rlsTssx cI.sisv

No. DIAL.
Mary Washington Female College VS..
John Mcintosh.
The main question involved in this case
Is. whether there was such failure of
consideration Of the note sued on as TO
discharge the defendant from liability
upon it.
1t appears from the evidence, that the
note was given as part of an endOw-
ment fund for the Female College, to be
raised by contributions of individuals.
which were to be secured by the note of
each contributor, payable on time to be
fixed by him, not exceeding five years,
bearing interest from date payable annual
", and renewable thereafter upon such
terms as the Board of Trustees should
prescribe. And in consideration of the
note, the contributor was, by the rules
and regulations of the institution, to re-
ceive a certificate of scholarship emitting
the holder to receive instruction "in any
College class" which the pupil might be
prepared to enter, perpetually free of tu-
ition fees. 1t was also shown by the tes-
timony of Mallett, the agent of the plain
tiff who took this note from the defend
ant, that it was the understanding that if
the interest on such notes was promptly
paid, the maker should have the privilege
OF renewing, and thaA hS was in the habit
of making that staten - % parties giving
their notes; and that witness also testified
that, at the time of taking this note, he
told the defendant that he understood
that music was to be included in the
studies to which his scholar would be en-
titled. 1t was also proved by Keenv. who
was for two years President Of the institu-
ton, that although the College course did
not embrace music. yet the trustees resell
we'd to allow the holders of scholarship tn
ition in music free, in addition to the usual
College course, and that he always settled
on that principle. 1t was further in evil
dence, that the defendant sent a scholar to
the institution in March 1852, shortly after
ITS commencement, paying twenty dollars
for halt the interest then due on his note /:
and in July 1852, at the close of the ses-
sion, that he paid the further sum of
twenty dollars for interest on his note,
and was required by the President to pay
the sum of thirty dollars on account of
music for the scholar, the defendant at
first refusing that sum, and claiming the
right, under his scholarship, to send a pu-
pill to the institution free of all charges
for tuition, on paying interest on his note
which he had done; but the President
saying that he would not be governed by
the scholarship; and the defendant then
settled as required, but stated to the Pres
ldent, that If they would not be governed
by the scholarship, he, the defendant
would be; and demanded his note which
was refused
From this evidence, it is manifest that
the consideration for the note arising to
the defendant was the right to have his
pupil instructed in any College class, free
of charge, and that instruction in music
was intended to be embraced in the course
of studies. The latter branch was a mate
rial part of the studies, as it would appear
from the sum charged for it and paid by
the defendant, exceeding the amount
paid for all other branches of study. 1t
was stated by the agent who took the note.
that it was embraced in the scholarship.
and it appears to have been allowed as a
part of it by resolution of the Board of
trustees. 1t was, therefore. plainly right
to which the defendant was entitled as an
I essential part of the consideration of his
note; and when denied, he was author
lied to consider the contract as at an end
and to demand rescission of il as he did
1t is also clear from this view, that there
is no error in the action Of the Court in
overruling the demurrer to the first and
| second answers of the defendant, and in
overruling the plaintiffs objection to the
| question propounded to the witness NAL
lett by the defendant and to the admis-
sion Of the record book of the proceed
ings of the Board of trustees of the insti-
tuition. This evidence was competent
/ a nf Nhs. 4 II
the note, and was properly admitted
The testimony Of the witness Kilgore
was imnaterial, and the verdict is we'll
/ justified by the evidence independent OF
it. And the eleventh instruction in ref
erence to it, asked by the plaintiff if ma
terial, was incorrect as legal proposition.
for the corporation certainly possessed
power to release party who had executed
a note for its benefit for scholarship which
Is denied by the instruction.
The refusal Of the sth instruction wa,
not error TO the plaintiffs prejudice be.
cause the same rule had already been sta
ted to the jury in the Sth instruction for
the plaintiff.
| Upon the whole case, it is evident that
the defendants fl lure to pay the interest
upon his note, which appears to have been
| INC hialh uIpose anu extent OF the con
tract, was occasioned by the failure on the
part of the plaintiffs to comply with that
part of the contract by which the defend
ant was entitled to send his scholar tC
the College free of any charge for instruc
ton in music; and that this was so essen
tial a part of the consideration as JUST
fed the defendant in claiming a rescissior
of the contract.
The Judgment is, therefore, correct
: and it is affirmed HANDY.