Eckstein v. Frank

1 Daly 334

Opinion

By the Court.

Daly, F. J.

The doctrine of Johnson v. Pie (1 Lev., 169; 1 Keb., 905, 913,) though recognized in a comparatively recent English case (Price v. Hewitt, 8 Wels., Hurl. & Gor., 146,) and though believed to be the law by Justice Sandford in Brown v. McCune (5 Sandf., 224,) had been eight years before distinctly repudiated by the Supreme Court of this State, upon full consideration, in Wallace v. Morse, (5 Hill, 392,) and it has also been considered and repudiated in a great number of cases in other States (Fitz v. Hall, 9 New Hamp., 441; Badger v. Phinney, 15 Mass., 359; Homer v. Thwing, 3 Pick., 492; Rice v. Clark, 8 Verm., 109 ; Green v. Sperry, 16 id., 393; Town v. Wile , 23 id., 361; Vosse v. Smith, 6 Cranch, 226; Burley v. Russell, 10 New Hamp., 184; Kilgrove v. Jordan, 17 Texas, 349; Norris v. Vance, 3 Rich., 164; Pergin v. Sutchliffe, 4 McCord, 387; Jervis v. Littlefield, 15 Maine, 233 Ward v. Vance, 1 Nott & McCord, 1, 7.)

It is therefore to be regarded as overruled in tiiis country by an overwhelming weight of authority.

The Justice has found that the defendant, before the contract was entered into, represented himself to be twenty-two years of age, he then being a minor. When an infant obtains property by falsely representing himself to be of full age, an action of tort may be maintained against him, either to recover it back or to recover damages, upon the ground that he obtained the possession of it wrongfully. It has long been the rule in courts of equity, that an infant will be held liable where he obtains property by a false representation respecting his age. “ If an infant, is old and cunning enough,” says Lord Chancellor Cowper, “ to contrive and carry out a fraud, he ought to make satisfaction for it.” (2 Eq. Ca. Ab., 515,) and the good sense and justice of requiring him to do so has been held in the numerous cases cited to be as applicable in a court of law as in a court of equity. '

The judgment should be affirmed.