Dillon v. Burnham, Hanna, Munger & Co.

43 Kan. 77

• Court: Supreme Court of Kansas
• Decided: January 15, 1890
• Status: Published

Opinion

The opinion of the court was delivered by

Johnston, J.:

There are two questions presented for our consideration: First, was Dillon bound by the contract which he made ? And second, could a judgment based thereon be enforced against his property ? In the absence of the evidence, we must assume that there was sufficient testimony to sustain the special findings and general verdict of the jury. From the findings, it appears that Dillon was only twenty years of age when the goods were purchased and the contract in question was made by him, and that he was still a minor when the trial occurred. Although the attachment proceeding was based on the alleged fraudulent purpose and conduct of Dillon, it is found that no misrepresentations as to his age were made by him for the purpose of obtaining credit. It is found, however, that prior to the purchase of the merchandise he was engaged in business as an adult, had bought and sold land as such, had represented to the governor that he was twenty-one years old, had paid poll-tax as an adult, and had executed deeds and mortgages as an adult; and further, that the firm from whom the goods were purchased had good reason to believe from his having been engaged in and carried on business as an adult, that he was legally capable of contracting. Notwithstanding these facts, he insists that his contract should be avoided; and this without restoring to the other party any of the property received by virtue of the contract. We think the contract was binding upon Dillon, and that the court ruled correctly in rendering judgment against him.

It is not necessary to follow counsel for plaintiff in error in his argument in regard to the status of minors under the common law, as we must be governed by our statutes in determining the liability of the minor under his contract and the other questions presented in the case. In chapter 67 of the Compiled Laws, the following provisions are found:

“Sec. 2. A minor is bound, not only by contracts for necessaries, but also by his other contracts, unless he disaffirms them within a reasonable time after he attains his majority, and restores to the other party all money or property received by him by virtue of the contract, and remaining within his control at any time after his attaining his majority.

“ Sec. 3. No contract can be thus disaffirmed in cases where, on account of the minor’s own misrepresentations as to his majority, or from his having engaged in business as an adult, the other party had good reasons to believe the minor capable of contracting.”

' infancy, not The facts of the present case bring it within one of the exceptions of the statute preventing the disaffirmance of a minor’s contract. All contracts of minors are binding unless disaffirmed. No affirmative act of ratification is needed to make them effectual, but an act of disaffirmance is required to relieve a minor from liability upon any contract made by him during his minority. Some of his contracts, however, are treated the same as those of an adult, and cannot be disaffirmed either before or after majority. When he misrepresents his age, or where he engages in business as an adult, thus giving the other party to the contract good reason to believe that he has reached majority, or is legally capable of contracting, the defense of infancy is not available. If the other party is deceived either by the minor’s direct misrepresentation or by implied misrepresentation by reason of his conduct in carrying on business as though he was legally capable of doing so, the contract which he makes may be enforced like that of an adult. Dillon’s contract must be held binding upon the latter ground, as the jury has found that he was engaged in business as- an adult at the time the debt was contracted, and that the other party had good reason to believe from the implied misrepresentation arising from his conduct that he was legally capable of contracting.

It is contended by plaintiff in error that from the use of the words in §3, “No contract can be thus disaffirmed,” etc., reference is made to the time of disaffirmance in § 2, under which he claims disaffirmance is only permitted after majority is reached, and therefore the provisions of § 3 cannot apply where a person seeks to avoid a contract during minority. The position is not sound. As to such contracts as may be avoided, the minor may, if he chooses, refuse to execute and comply with their provisions at any time when he is sued upon them before he comes of age, as well as for a reasonable time afterward. (Burgett v. Barrick, 25 Kas. 526.) The cases mentioned in the statute like the present one, in which disaffirmance is not allowed, are clearly to be regarded as exceptions from the general rule affording minors immunity from liability on their contracts. As to such excepted cases, the contracts are to be treated and enforced by the courts to the same extent as those of an adult. This was the view of the supreme court of Iowa on a statute exactly similar to ours. (Oswald v. Broderick, 1 Iowa, 381; Prouty v. Edgar, 6 id. 353; Beller v. Marchant, 30 id. 350; Jaques v. Sax, 39 id. 367; Childs v. Dobbins, 55 id. 205.) The act of the legislature authorizing the district courts to confer the rights of majority on minors in certain cases does not repeal or modify the provisions quoted, or in any way affect the decision of the questions involved.

2. Attachment, oLra“jud£mentenforced. The second point raised by plaintiff in error must also be overruled. "Where the contracts of a minor are binding upon him and may be reduced to judgment, they certainly may be enforced by appropriate writs or proceedings. It would be idle to authorize the enforcement of a contract and the rendition of a judgment if such judgment could not be made effective when given. As the courts have authority to require a' minor who cannot disaffirm to appear and answer, and to be bound by judgment rendered aga;ÜSj. ^ follows that, in the absence of statutes to the contrary, writs of attachment, or other appropriate proceedings to require a satisfaction of the judgment, may be obtained as in other cases. (Freeman on Executions, §22.)

The judgment of the district court will be affirmed.

All the Justices concurring.