Smith v. Smith

Alabama Court of Appeals

Smith v. Smith

139 So. 2d 345, 41 Ala. App. 403, 1961 Ala. App. LEXIS 328

CourtAlabama Court of Appeals

DecidedSeptember 5, 1961

Docket4 Div. 438

StatusPublished

This text of 139 So. 2d 345 (Smith v. Smith) is published on Counsel Stack Legal Research, covering Alabama Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Smith v. Smith, 139 So. 2d 345, 41 Ala. App. 403, 1961 Ala. App. LEXIS 328 (Ala. Ct. App. 1961).

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CATES, Judge.

This is an appeal from a judgment for $150 in favor of a minor against the buyer of an automobile. The action was for conversion because of the inability of the buyer to restore the car to the minor on his claimed disaffirmance of his sale.

Appellant’s brief gives the facts thus:

March 14, 1959, appellee sold a 1949 Ford automobile to appellant for $75. March 16 or 17, appellee’s father¹ went to appellant’s place of business and offered $75 or $80 for the return of the automobile. The automobile had been sold at that time. “Appellee personally never attempted to recover the automobile nor did he advise Appellant that he was disaffirming the contract of sale.” Suit was filed April 7.

On motion for new trial the court admitted error in permitting evidence of the plaintiff’s father (also next friend in the action) acting to disaffirm for his son.

This we do not consider error for either or both of two reasons : (1) The father merely carried his son’s message and tender, in nowise seeking to bind his son to a further bargain, the son already having decided on disaffirmance; (2) the father could act for his son either (a) because he presumptively is his son’s next [405]*405friend, other things equal, or (b) because under the “modern” view an infant may act by an agent. Restatement, Agency 2d, § 20c (Vol. 1, p. 91), citing Woodson v. Hare, 244 Ala. 301, 13 So.2d 172; Stone, Liability for Damage Caused by Minors, 5 Ala.L. Rev. 1, at 28, 29; Williston, Contracts (2d Ed.), § 227A (Vol. 2, p. 12, fn. 1).

Thus, we need not rely, as did the court below, on Smoot v. Ryan, 187 Ala. 396, 65 So. 828, for the view that the filing of an action (as distinguished from a “suit” in equity for rescission) is ipso facto a disaffirmance. It seems somewhat incongruous to have a cause of action which does not arise (because there is no conversion before avoidance by the infant) until the complaint is filed for its redress. Betts v. Carroll, 6 Mo.App. 518.

Affirmed.

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CATES, Judge.

This is an appeal from a judgment for $150 in favor of a minor against the buyer of an automobile. The action was for conversion because of the inability of the buyer to restore the car to the minor on his claimed disaffirmance of his sale.

Appellant’s brief gives the facts thus:

March 14, 1959, appellee sold a 1949 Ford automobile to appellant for $75. March 16 or 17, appellee’s father¹ went to appellant’s place of business and offered $75 or $80 for the return of the automobile. The automobile had been sold at that time. “Appellee personally never attempted to recover the automobile nor did he advise Appellant that he was disaffirming the contract of sale.” Suit was filed April 7.

On motion for new trial the court admitted error in permitting evidence of the plaintiff’s father (also next friend in the action) acting to disaffirm for his son.

This we do not consider error for either or both of two reasons : (1) The father merely carried his son’s message and tender, in nowise seeking to bind his son to a further bargain, the son already having decided on disaffirmance; (2) the father could act for his son either (a) because he presumptively is his son’s next [405]*405friend, other things equal, or (b) because under the “modern” view an infant may act by an agent. Restatement, Agency 2d, § 20c (Vol. 1, p. 91), citing Woodson v. Hare, 244 Ala. 301, 13 So.2d 172; Stone, Liability for Damage Caused by Minors, 5 Ala.L. Rev. 1, at 28, 29; Williston, Contracts (2d Ed.), § 227A (Vol. 2, p. 12, fn. 1).

Thus, we need not rely, as did the court below, on Smoot v. Ryan, 187 Ala. 396, 65 So. 828, for the view that the filing of an action (as distinguished from a “suit” in equity for rescission) is ipso facto a disaffirmance. It seems somewhat incongruous to have a cause of action which does not arise (because there is no conversion before avoidance by the infant) until the complaint is filed for its redress. Betts v. Carroll, 6 Mo.App. 518.

Affirmed.

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139 So. 2d 345, 41 Ala. App. 403, 1961 Ala. App. LEXIS 328, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-smith-alactapp-1961.

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