Carr v. Clough

26 N.H. 280

• Court: Superior Court of New Hampshire
• Decided: July 15, 1853
• Status: Published

Opinion

Eastman, J.

There is no suggestion in this case of any misrepresentation or fraud, on the part of the minor, in entering into the contract between him and the defendant, and nothing tending to' show that the defendant was not perfectly aware of the minority of the plaintiff when the exchange of horses took place between them. And the defendant must be presumed to have entered into the contract with a full knowledge of the legal privileges that are extended to infants.

A question is made at the outset, whether the contract between the parties was fully executed or not. In many cases this would be an important inquiry, but in the present case we do not view it as such, and we shall, therefore, treat the contract as an executed one, since we do not regard it as material to the decision of the cause to consider the contract to be of a lower degree, or other than that contended for by the defendant.

There is some conflict in the books as to the question whether an infant can rescind an executed contract before coming of age. Some authorities hold that it cannot be done in any class of contracts; that the infant lacks the legal discretion to do the act of avoidance; while others maintain that it may be done in all; that the privilege would be ineffectual and the infant unprotected without it. Other authorities make a distinction between contracts relating to real estate and those which pertain to persorial property, holding that the deed of an infant cannot be avoided by him till after arriving at full age, while a sale of personal property may be, at any time, either before or after.

The precise question presented here, and that which in fact lies at the foundation of this action, is this: can an infant, during his minority, rescind a sale of personal property made by him, without fraud, after he has delivered the prop-, erty to the purchaser, for a good consideration, paid by the' latter ?

In Roof v. Stafford, 7 Cowen 179, it was expressly held that a sale and delivery of goods by an infant, with his own hand, is not voidable till he comes of age, and so also in regard to his conveyances of real estate. The decision of this case was chiefly founded upon the authority of Zouch v. Parsons, 3 Burrows, 1794, which was an action of ejectment, the precise question being whether an infant’s conveyance by lease and release was absolutely void or only voidable. Lord Mansfield examined and reviewed the authorities upon the question, and laid down this rule among others, that an infant cannot avoid his conveyance of lands till the age of twenty-one years. His reasoning was taken as the foundation of the decision of Roof v. Stafford, and his rule has been adopted in many other cases. But it should be borne in mind that he was discussing the question as applicable to conveyances of real estate, and that the. question of sales of personal property was not before him; and hence, although the case may be high authority in contracts affecting real estate, it can have no direct bearing upon those affecting personal property. In many of the decisions, too, which have been made upon the authority of Zouch v. Parsons, the attention of the court does not appear to have been called to any distinction that may be taken between contracts touching real estate and those pertaining to personal property.

The decision made in Roof v. Stafford was reversed by the court of errors, in Stafford v. Roof, 9 Cowen 626. The action was trover, originally brought by Stafford, a minor, in the mayor’s court of the city of Albany, for a horse sold by Stafford to Roof. The mayor’s court held that Stafford, although a minor, could rescind his contract and maintain the action. Roof brought 'a writ of error, and the action was carried to the supreme court, where the decision was made as reported in 7 Cowen, 179, and where it was held that Stafford could not avoid the contract till arriving at full age. From the supreme court the case was carried to the court of errors by Stafford, and that court held that the action would lie before Stafford arrived at the age of twenty-one, and affirmed the judgment of the mayor’s court. Jones, chancellor, said: “ The general rule is, that an infant cannot avoid his contract, executed by himself, and which is, therefore, voidable only while he is within age. He lacks legal discretion to do the act of avoidance. But this rule must be taken with the distinction that the delay shall not work unavoidable prejudice to the infant, or the object of his privilege, which is intended for his protection, would not be answered. When applied to a sale of his property, it must be his land; a case in which he may enter and receive the profits until the power of finally avoiding shall arrive; and such was the doctrine of Zouch v. Parsons, 3 Burr. 1794. Should the law extend the same doctrine to sales of personal estate, it would evidently expose him to great loss in many cases; and we shall act up to the principle of protection much more effectually by allowing him to rescind while under age, though he may sometimes misjudge and avoid a. contract which is for his own benefit. The true rule, then,. appears to me to be this: that where the infant can enter and hold the subject of the sale till his legal age, he shall be incapable of avoiding until that time ; but where the possession is changed, and there is no legal means to require and hold it in the mean time, the infant, or his guardian for/ him, has the right to exercise the power of rescission imme-l diately.” The learned chancellor proceeded also to say that the common law gives no action or other means by which the mere possession of personal property can be reclaimed and held, subject to the right of avoidance ; and the decision that the contract could be avoided during minority was accordingly made. •

There is no fact before us involving the question whether a conveyance of real estate may be avoided within age or not, and we need express no opinion in regard to it. But it appears to us that the reasoning in Stafford v. Roof., so far as the same is applicable to this case, is founded upon correct principles. If the subject of the sale be personal property, and a delivery to, and possession by, the vendee, follows, and there are no legal means to regain the property till the minor arrives at full age, so as to decide whether he will ratify the contract or not, the property may all be wasted and gone, beyond recovery, and in many cases for a very inadequate consideration. In such cases, the principle of protection would be of little use, could it not be exercised before maturity. We lay down the rule, then, that a sale and delivery' of personal property by a minor, for a good consideration, but made without fraud by him, may be rescinded by the minor before arriving at full age. Stafford v. Roof 9 Cow. 626; Shipman v. Horton & a. 17 Ct. Rep. 481; Willis v. Twombly, 13 Mass. Rep. 204; Bing, on Infancy 64, note 5. f But if the infant rescinds the contract, and seeks to recover the article sold by him, he must restore the property or consideration received, before he can maintain his action for the property sold. This is but even handed justice, and a contrary doctrine would oftentimes enable the infant to use his minority for the perpetration of gross fraud. Thus in Badger v. Phinney, 15 Mass. Rep. 363, Putnam, Justice, says, “ As to the sale of the goods to the plaintiff, it is sufficient to say that the contract was executed by Rand, the infant. He delivered the goods and received the money for them, and we should have required him to restore the money before recovering the goods. We must remember that the privilege of infancy is a shield, not a sword.” The principle is thisy. that upon the rescinding of the contract by the infant, the parties shall be restored to their original rights.

Many cases are to be found where this principle has been acted upon, so far as the circumstances would permit, and among them we cite the following: Ketchen v. Lee, 11 Paige 107; Hubbard v. Cummings, 1 Greenl. 13; Taft v. Pike, 14 Vt. Rep. 409; Badger v. Phinney, 15 Mass. Rep. 362; Buffington & a. v. Gerrish, 15 Mass. Rep. 156; Smith v. Evans, 5 Humph. 70; Holmes v. Blogg, 8 Taun. 508; Roberts v. Wiggin, 1 N. H. Rep. 73; Roof v. Stafford, 7 Cow. 182; Homer v. Thwing, 3 Pick. 492; Vasse v. Smith, 6 Cranch 231; Fitis v. Hall, 9 N. H. Rep. 441.

Badger v. Phinney was replevin, and the precise point decided was this: that where goods are sold to an infant on a credit, and he avails himself of his infancy to avoid payment, the vender may reclaim the goods as having never parted with his property in them. And in Fitts v. Hall it was held that if an infant disaffirms a contract by which goods have been sold to him, if he has the goods in his possession, and refuses to deliver them to the vender upon a demand for that purpose, trover may be maintained against him for the conversion. The same case also lays down the principle, that where the property has passed from the hands of the infant, trover will not lie, although if there has been fraud practised by the infant, a special action on the case may be sustained.

The doctrine upon this point, as gathered from the weight of authority, and which seems to be founded in good reason, appears to be this: First, that the infant shall not be permitted to rescind his contract, and recover the articles parted with by him, without first restoring the property or considation received therefor. Second, that in case of sale by an' adult to an infant, if the adult demands the payment or consideration promised by the infant, and he disaffirms the con- ! tract and refuses payment, or, if suit be brought against him, pleads infancy and avoids the debt, the adult may thereafter, in case the property be in the infant’s possession, (maintain replevin therefor, or demand the property, and upon refusal, bring trover and recover its value. If, however, the infant has parted with the possession of the property sold him, the adult is remediless, provided there has been no fraud practised. If there has beerf, a special action on the case may be sustained.

From the principles which we have endeavored to lay down, it follows that upon the rescission of a contract by an infant, and the restoration of the property or consideration received by him, or the offer to restore the same, the infant may maintain a special action on the case for the damages sustained, or may maintain trover upon showing a conversion of the property. By the rescission each party is entitled to his respective property, so far as they themselves are concerned.

It follows, also, in the absence of fraud, where the con-. tract is fully executed, that until the sanie is rescinded, the adult has the right to the property which he has received, and has the right to make a bona fide sale of the same be-' fore the rescission.

Assuming, then, that the horse, for the value of which this action was brought, was sold in good faith by the defendant, and its possession parted with, before the formal rescission of the contract by the plaintiff, on the second of December, and assuming, also, that nothing had taken place that would ,amount to or be evidence of a rescission until that day, this action cannot be sustained ; for the contract being executed, and the animal delivered to the defendant by the plaintiff himself, the sale of the horse by the defendant, before the rescission, could not amount to a conversion, since the possession of the defendant was at that time rightful and his control over the property complete. Nor would the plaintiff be aided by the demand and refusal, for it was made after the defendant, upon the assumption of a bona fide sale, had legally parted with - the property, and when he had no power to comply with the demand. A demand and refusal merely, are only evidence of a conversion. They do not constitute a conversion, if the party hás not the power of compliance. White v. Phelps, 12 N. H. Rep. 385; Knapp v. Winchester, 11 Vt. Rep. 351. The demand here, in brdev to be effectual, would necessarily have to be made before the sale and after the rescission.

The case finds that the horse was sold by the defendant before the second of December, and that there was no formal rescission of the contract until that day, and no demand and refusal till then. Unless, therefore, the evidence was competent to show that the contract was rescinded before the sale, or that the sale was made in bad faith by the defendant, or was fictitious, so that the rescission on the second of December, and the demand and refusal on that day, would be effectual, the action of trover cannot lie,’ and the plaintiff would necessarily be put to his special action on the case.

A court will always prevent a circuity of actions whenever it can be done, and the rights of the parties be substantially preserved. And we think it may be prevented in this case. Here was evidence from which the jury might well find that the sale by the defendant was not made in good faith. In the first place, the defendant did not pay or offer to pay the ten dollars, the difference in the exchange, as he agreed to do, either .on the day after the 'sale, or on the day next succeeding the first interview after the exchange. It would appear as though he retained the money, under the apprehension that the plaintiff would not abide by his bargain. In the next place, he was told by the plaintiff, soon after the exchange, that he wished to trade back. This was sufficient to put him on his guard not to part with the horse, while at the same time it might induce him to sell the animal at once. Again, when the plaintiff went to the house of the defendant, on the second of December, and taking the mare with him, offered to return her, and informed the defendant that he would not abide by the trade, and requested the defendant to deliver him the horse, the defendant refused to do it, saying that he would not let him have the horse, and would not receive back the mare; and he assigned no particular reason for this refusal; he gave no intimation that he had sold the horse. Now, if the sale which he had made was free from fraud and valid, if there was nothing dishonest or fictitious about it, he would scarcely have failed to have stated at once that he had sold the animal, and he would most naturally have given that as one reason at least why he could not exchange back. But he makes no mention whatever of the sale. And if, as was said in argument and not denied, the sale was made to the father-in-law of the defendant, it would give a coloring to the transaction which the jury would be very likely to notice. Taking all the evidence together, we think it entirely competent to show an invalid sale by the defendant, and of course the rescisión and the demand and refusal, on the second of December, were good.

We might suggest the inquiry whether, after the defendant had refused to trade back, as was done on the Monday succeeding the exchange, it was necessary for the plaintiff to take the mare to the defendant and offer to restore her, in order to complete the rescission of the contract; and whether a sale of the horse, even if made in good faith, would not, after the plaintiff had requested the defendant to trade back, amount to a conversion. But the views which we have expressed render it unnecessary to examine these inquiries. The result to which we have arrived does justice between the parties. It protects the infant and gives to him the value of his horse, while at the same time it, in effect, restores to the defendant the animal which he himself had parted with.

Judgment on the verdict.