Benson v. Tucker

212 Mass. 60, 1912 Mass. LEXIS 868

• Court: Massachusetts Supreme Judicial Court
• Decided: May 24, 1912
• Status: Published

Opinion

Braley, J.

The appointment of the defendants as his agent by the plaintiff, who is a minor, to buy and sell for him certain shares of copper stocks was under our decisions not void but voidable only at his option, and the notice of disaffirmance given in the plaintiff’s behalf by his guardian, even if delayed until all the transactions between the parties had been adjusted was a sufficient rescission. Whitney v. Dutch, 14 Mass. 457, 461. Simpson v. Prudential Ins. Co. 184 Mass. 348. The defense is, that the plaintiffs money which he advanced with the first order having been invested as he directed, and his subsequent orders having been duly executed he cannot rescind. If in Breed v. Judd, 1 Gray, 455, and Welch v. Welch, 103 Mass. 562, it was held, that an executed contract beneficial to the minor could not be rescinded unless he restored the consideration, the plaintiff did not receive any of the shares of stock which the defendants purchased for him, and no inference can be drawn, that after his incapacity had been removed he intended to ratify the acts of his agents. Gibson v. Soper, 6 Gray, 279, 283. Todd v. Clapp, 118 Mass. 495. The money received from the defendants as the net result of all the purchases and sales, never equalled the amount of the first advancement. A substantial loss resulted, and neither as matter of fact nor as matter of law has the plaintiff been benefited. White v. New Bedford Cotton Waste Co. 178 Mass. 20, 24. The law because of his minority confers upon him the unqualified right to disaffirm the agreement, and the judgment of the Superior Court should be affirmed. Dubé v. Beaudry, 150 Mass. 448. Gillis v. Goodwin, 180 Mass. 140.

So ordered.