Williams, Ch. J.
The defendants insist, that Horton, being an infant, had a right to rescind his contract, and retake his goods. The plaintiff admits, that he might have avoided it at full age, but not while he remained an infant.
In case of a deed of land bv an infant, it seems to be settled, that the conveyance cannot be avoided until the infant arrives at full age, and in case of marriage, not until he arrives at the age of consent. Zouch v. Parsons, 3 Burr. 1808. 3 Bac. Abr. tit. Infancy. A. And we have found no case, in which this doctrine has been extended to personal property, except [484] j that of Roof v. Stafford, 1 Cow. 179. which was reversed by I the highest court of the state. 9 Cow. 626. And when we consider, that if this was so, the infant would, in many cases, by the use or loss of the property, be deprived of the benefit of this principle, we concur with the final decision of that case, and with the court below ; and hold, that such a contract might be avoided by the infant, before he was of age. So too we concur in the general principle laid down by the judge at the trial, that the recapture of personal property by the owner, must be made in a peaceable manner, and not by the perversion of legal process. And it is certain, that under such a claim a person cannot justify an assault and battery. Sampson v. Henry, 11 Pick. 379. Gregory v. Hill, 8 Term R. 299. But this is not a case of that character, but an action of trespass for the goods themselves. And we have, at this term, in the case of Bolder v. Eldridge, (a) decided, that a person has a right to retake his personal property from the unlawful possession of another. Of course, it must follow, that if this contract has been rescinded by Horton, and the title thus re-vested in him, an action of trespass could not be sustained against him for taking the goods.
But upon an attentive consideration of the facts stated in this case, and the respective claims of the parties on the trial, we are of the opinion that the charge upon this point could not have affected the proper termination of the cause.
The plaintiff claimed to have purchased most of the goods in dispute of Horton, but that other goods of his were also taken, together with the avails of goods sold ; and as to the taking of these goods, there was no dispute. Had then the defendants attempted to justify the taking of the goods, upon the ground that they were originally Horton’s, and sold by him to the plaintiff, and that he had rescinded the contract thus made with the plaintiff; it is apparent, that the defence would not have been as broad as the claim of the plaintiff ; because it was not denied, that other property was taken by Horton than that which was sold or delivered by him. The defendants, therefore, took other and broader ground, viz. that the goods were never sold by Horton to the plaintiff, but that they were delivered by him to the infant son of the plaintiff, to sell and [485] account for; and that the father was merely surety therefor ; and that, by the contract itself, they were to be re-delivered - to Mm, by Albert, whenever he chose to demand them ; that such a demand was made, and Albert refused to deliver them ; after which he procured the writ and a surrender of the goods. And no evidence was given or claim made, that any contract with the plaintiff was ever rescinded by Horton, unless these transactions with Albert furnished such evidence. Nor was the court requested to charge the jury, that these facts were evidence tending to show a rescinding of the contract.
So far from any claim, in fact, of a rescinding of the contract with the plaintiff, the whole defence proceeded upon the ground that no contract was ever made with him. And even as it respects the contract claimed to have been made with Albert, the defence proceeded, not on the ground that the contract had been rescinded, but in affirmance of the contract. Horton claimed, that by virtue of the contract itself, he had a right to stop Albert, whenever he was dissatisfied, and to take the goods originally purchased, together with the avails of them; and thereupon in the settlement, no distinction was made between the goods originally purchased, and those which had since been procured by Albert, from the avails of the goods sold.
The case then stands thus ; for the question of title was distinctly submitted to the jury. The goods were sold by Horton to the plaintiff. The plaintiff’s case rested entirely on this ; and the jury must have so found.
Is there, then, any single fact stated, tending to show that the defendant, Horton, had rescinded this contract ? r So far from it, he denies there ever was any contract with him. He also denies any contract of sale with any one, but that he placed the goods in the hands of Albert, as his agent; and that so far from rescinding that contract, he has acted throughout in pursuance of it. Whatever, therefore, might be the opinion of the court, upon the charge, as applicable to a supposed case, we think the defendants have shown no cause of complaint; because, upon the facts stated in this motion, we do not see any foundation laid for a claim that the contract with the plaintiff had been rescinded. On the contrary, the whole character of the defence is inconsistent with such a claim.
[486] Were it not so, it is apparent that the defence did not cover -the whole claim of the plaintiff. For if the contract with the, plaintiff had been rescinded, we do not see how that would have vested in Horton a title to that portion of the goods which was never owned by him, but which was purchased from the avails of the goods then clearly the plaintiff’s.
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Williams, Ch. J.
The defendants insist, that Horton, being an infant, had a right to rescind his contract, and retake his goods. The plaintiff admits, that he might have avoided it at full age, but not while he remained an infant.
In case of a deed of land bv an infant, it seems to be settled, that the conveyance cannot be avoided until the infant arrives at full age, and in case of marriage, not until he arrives at the age of consent. Zouch v. Parsons, 3 Burr. 1808. 3 Bac. Abr. tit. Infancy. A. And we have found no case, in which this doctrine has been extended to personal property, except [484] j that of Roof v. Stafford, 1 Cow. 179. which was reversed by I the highest court of the state. 9 Cow. 626. And when we consider, that if this was so, the infant would, in many cases, by the use or loss of the property, be deprived of the benefit of this principle, we concur with the final decision of that case, and with the court below ; and hold, that such a contract might be avoided by the infant, before he was of age. So too we concur in the general principle laid down by the judge at the trial, that the recapture of personal property by the owner, must be made in a peaceable manner, and not by the perversion of legal process. And it is certain, that under such a claim a person cannot justify an assault and battery. Sampson v. Henry, 11 Pick. 379. Gregory v. Hill, 8 Term R. 299. But this is not a case of that character, but an action of trespass for the goods themselves. And we have, at this term, in the case of Bolder v. Eldridge, (a) decided, that a person has a right to retake his personal property from the unlawful possession of another. Of course, it must follow, that if this contract has been rescinded by Horton, and the title thus re-vested in him, an action of trespass could not be sustained against him for taking the goods.
But upon an attentive consideration of the facts stated in this case, and the respective claims of the parties on the trial, we are of the opinion that the charge upon this point could not have affected the proper termination of the cause.
The plaintiff claimed to have purchased most of the goods in dispute of Horton, but that other goods of his were also taken, together with the avails of goods sold ; and as to the taking of these goods, there was no dispute. Had then the defendants attempted to justify the taking of the goods, upon the ground that they were originally Horton’s, and sold by him to the plaintiff, and that he had rescinded the contract thus made with the plaintiff; it is apparent, that the defence would not have been as broad as the claim of the plaintiff ; because it was not denied, that other property was taken by Horton than that which was sold or delivered by him. The defendants, therefore, took other and broader ground, viz. that the goods were never sold by Horton to the plaintiff, but that they were delivered by him to the infant son of the plaintiff, to sell and [485] account for; and that the father was merely surety therefor ; and that, by the contract itself, they were to be re-delivered - to Mm, by Albert, whenever he chose to demand them ; that such a demand was made, and Albert refused to deliver them ; after which he procured the writ and a surrender of the goods. And no evidence was given or claim made, that any contract with the plaintiff was ever rescinded by Horton, unless these transactions with Albert furnished such evidence. Nor was the court requested to charge the jury, that these facts were evidence tending to show a rescinding of the contract.
So far from any claim, in fact, of a rescinding of the contract with the plaintiff, the whole defence proceeded upon the ground that no contract was ever made with him. And even as it respects the contract claimed to have been made with Albert, the defence proceeded, not on the ground that the contract had been rescinded, but in affirmance of the contract. Horton claimed, that by virtue of the contract itself, he had a right to stop Albert, whenever he was dissatisfied, and to take the goods originally purchased, together with the avails of them; and thereupon in the settlement, no distinction was made between the goods originally purchased, and those which had since been procured by Albert, from the avails of the goods sold.
The case then stands thus ; for the question of title was distinctly submitted to the jury. The goods were sold by Horton to the plaintiff. The plaintiff’s case rested entirely on this ; and the jury must have so found.
Is there, then, any single fact stated, tending to show that the defendant, Horton, had rescinded this contract ? r So far from it, he denies there ever was any contract with him. He also denies any contract of sale with any one, but that he placed the goods in the hands of Albert, as his agent; and that so far from rescinding that contract, he has acted throughout in pursuance of it. Whatever, therefore, might be the opinion of the court, upon the charge, as applicable to a supposed case, we think the defendants have shown no cause of complaint; because, upon the facts stated in this motion, we do not see any foundation laid for a claim that the contract with the plaintiff had been rescinded. On the contrary, the whole character of the defence is inconsistent with such a claim.
[486] Were it not so, it is apparent that the defence did not cover -the whole claim of the plaintiff. For if the contract with the, plaintiff had been rescinded, we do not see how that would have vested in Horton a title to that portion of the goods which was never owned by him, but which was purchased from the avails of the goods then clearly the plaintiff’s.
if an infant sells a horse and wagon, and the purchaser sells the hdrse and buys another, it will hardly be claimed, that if the infant avoids the contract, the last horse is his. So here, the watch and other articles, the avails of the goods sold, cannot become the property of Horton, and the plaintiff must recover therefor, unless another claim of the defendants is well founded, viz. that the settlement with Albert transferred this and all the property to Horton. This has not been much insisted on ; but it forms part of the líase. The plaintiff had put these goods into the hands of a minor son, to furnish him with employment as a peddler ; and as he had authority thereby to peddle and sell the goods, it is supposed he had a right thereby to deliver them in payment of a debt not then due to Horton, who must be supposed cognizant of all the facts relating to this transaction. The object of the plaintiff was, to fit his son for this business: for this he bought the goods, and placed his son under the direction of Horton. To say that because he gave his son power to sell these goods, as a peddler, it gave him power to sell them in a lump, to pay a debt not due, is to give a very broad construction to this power. To say that a clerk in a retail shop, because he had a right to sell goods, had a right to sell them in a lump, in payment of the merchant’s debts, would hardly be contended ; and yet in this case, it must be claimed, that a minor son might make such a disposition of the property, as would entirely defeat the object of the purchase, and terminate the sole intent for which it was made.
Such a construction would be in the face of the principle, that all powers are to depend upon “ the substantial intention and purpose of the party,” as is said by Lord Mansfield, in Ren v. Bulkeley, Doug. 293. We think there is no foundation for this argument. The plaintiff then must have been entitled to recover for some part of this property; and although we do not know the comparative value of the property originally sold, and that which has been since acquired, yet when [487] to look at the sum given in damages, we should hesitate in opening this case, to see how much that sum should be reduced, if this had been the only question.
We have no rule, as in some of the courts in England, that we will not grant a new trial where the sum in controversy is less than 20/. Jones v. Dale, 9 Price, 592. But where the mistake, if any, can make but trifling difference, we should be disposed to follow the practice in New-York, and deny a new trial. Hyatt v. Wood, 3 Johns. R. 239.
In this opinion the other Judges concurred.
New trial not to be granted.