
    TYLER COMMERCIAL COLLEGE v. HESLEP.
    No. 4038.
    Court of Civil Appeals of Texas. Texarkana.
    Sept. 25, 1931.
    Rehearing Denied Oct. 1, 1931.
    Butler, Price & Maynor, of Tyler, for appellant.
    Warren, Lasseter & Warren, of Tyler, and Sheffield & Coates, of Helena, Ark., for ap-pellee.
   SELLERS, J.

This suit was instituted in the county court of Smith county, Tex., by tbe appellee against the appellant on September 19, 1930, to recover of appellant tbe sum of $218, being tbe amount of tuition paid by appellee to appél-lant for a business course in its college.

Appellee alleged in bis petition tbat -be paid said sum of money for a business course in tbe appellant college, but tbat tbe appellant refused to permit tbe appellee to complete his course, but, on the contrary, expelled him from tbe institution without reasonable grounds, and that thereby appellant bad breached its contract with appellee.

Tbe appellant answered by general demurrer, general denial, and by specially answering tbat it did not expel appellee from its .college, but tbat it only suspended him for violating the rules of tbe college and was ready and willing to receive him back as a student, provided be would observe tbe rules of tbe college. Tbat it, the appellant, bad offered to accept tbe appellee back as a student to continue bis course in tbe college if and when be would obey tbe rules of tbe college for tbe government of tbe school and student body. Tbat tbe appellee refused to do so, and tbat at no time bad tbe appellee been expelled by tbe appellant.

At the trial of tbe case in tbe county court December 16, 1930, before tbe court and jury, a verdict was rendered in answer to special issues submitted to tbe jury by tbe court, upon which verdict tbe court entered judgment for tbe appellee for tbe sum sued for. Tbe appellant in due time perfected its appeal to this court, and tbe case is now before this court for review.

At tbe close of tbe evidence, the appellant requested tbe court to instruct tbe jury to return a verdict for tbe defendant. Tbe court refused to so instruct tbe jury, and such .refusal is made tbe basis of tbe appellant’s second assignment of error on this appeal, which assignment is as follows': “Tbe appellee sued for tbe refund of tuition in tbe appellant college by reason of having been wrongfully expelled from tbat institution and tbe uncon-tradicted proof having shown that tbe appel-lee was not expelled from tbe college but was simply suspended until be agreed to observe tbe rules for tbe government of the college, there was a fatal variance between tbe allegation and tbe proof and tbe court erred in not giving tbe defendant’s instructed verdict in its favor.”

In tbe light of the record of this case, and especially of tbe testimony of Pope Heslep himself, this assignment will be sustained. It is perfectly clear to this court, and, in fact; uncontradicted in tbe record, tbat appellee was not expelled from appellant college, but at most was only suspended for two weeks for repeated violation of tbe rules governing tbe student body of tbe college, and bad tbe ap-pellee so desired at tbe end of tbe two weeks’ suspension period, or even now, could return to appellant college and continue his studies by simply presenting himself and observing the rules of the college.

Because of the error herein discussed, the judgment of the trial court will be reversed, and judgment here rendered for appellant.  