Spalding, Ch. J.
The question for determination seems to be, may an infant sue on an express contract, which he has disaffirmed after partial performance, and, if so, may the defendant recoup or offset-damages for its breach by the infant ? The statutory provisions pertinent to the question are found in § 4014, Eev. Codes 1905, providing that a minor may make any contract other than as above specified in the same manner as an adult, subject only to his power of disaffirmance under the provisions of this chapter, and subject to the provisions of the chapters on marriage and on master and servant. The exceptions referred to have no application to this case. Section 4023 empowers a minor to enforce his rights by civil action or other legal proceedings in the same manner as a person of full age, except that a guardian must be appointed to conduct the same. Section 4015 permits the infant to disaffirm his contracts, except those for necessaries and any expressly [191]*191authorized by statute; aud if the contract is made when he is under the age of eighteen years, he may disaffirm it either before his majority or within one year’s time afterwards, while if the contract is made while-he is over the age of eighteen, it may be disaffirmed by him upon restoring the consideration or paying its equivalent, with interest.
In an application for judgment upon the pleadings, the motion admits the truth of all well-pleaded facts in the pleading of the opposite-party (31 Cyc. 606; Walling v. Bown, 9 Idaho, 184, 12 Pac. 960); hence, for the purpose of this action the contract is as set forth in the answer of the defendant (Willis v. Holmes, 28 Or. 265, 42 Pac. 989). This eliminates all consideration of the allegation contained in theeomplaint, that the plaintiff was to receive $26 per month, if he quit the services of the defendant before the close of the season.
When the plaintiff alleges an express contract as a basis for recovery, he cannot recover on an implied contract or quantum meruit. Lowe v. Jensen, 22 N. D. 148, 132 N. W. 661, and authorities cited; Tharp v. Blew, 23 N. D. 3, 135 N. W. 659. This question has been so recently passed upon by this court that no discussion is necessary. It is apparent in the case at bar that, if the plaintiff might recover upon quantum meruit, the complaint contains no allegations of the-value of the services. Hence, no foundation is laid for such a recovery.
We need not consider what the rights of the parties would be, had this action been brought upon quantum meruit, as that question is not involved under the pleadings, nor under the motion for judgment on the pleadings and the stipulation made by the parties in open court, to which reference has been made.
Legislatures and courts have sought to protect the rights of minors by rendering their contracts void in some cases and voidable in others. The contract pleaded was voidable only at the instance of the plaintiff. The theory of the legislatures and courts seems to have been that minors are, by reason of mental immaturity and lack of experience, unable to deal with adults on an equality, or to protect their own rights and interests. There is a great conflict of authority on every phase of contracts of infants, and particularly upon those which have been partially performed and disaffirmed by the infant before reaching majority. Some courts have carried the doctrine of their incapacity to such a limit that its application seems to work greater injustice than [192]*192would be caused by its abrogation; but we are dealing, in a measure, with legislative provisions and inhibitions, which are not altogether clear or comprehensive. In fact, the distinguished legal authority, the late Mr. A. C. Freeman, analyzes and comments upon the provisions of the California statute, which are in all material respects identical with our own, including the sections quoted, as follows: “The Civil Code of California contains several sections on this subject, which, as amended, exhibit a minimum acquaintance with the general law and a maximum obscurity of thought. The sections certainly have not the ‘pride of ancestry,’ and we will venture to predict that in an intelligent community they have not the ‘hope of posterity.’ ” After further analyzing and commenting upon them, he says: “These distinctions made by the codifiers are perfectly senseless.” 18 Am. St. Rep. 580, note.
The minor cannot disaffirm his express contract when partially performed, and in a suit on the contract recover his wages for the time he worked. The reason for this is that he cannot both disaffirm and affirm his contract at the same time. He cannot disaffirm it for the purpose of escaping the burdens it imposes upon him, and affirm it for the purpose of obtaining all or any part of the benefits which accrue to him. It is either a contract or it is not a .contract. If he elects to disaffirm it, and having elected to disaffirm it, the disaffirmance relates back to the inception of the contract and from the beginning it is no longer a contract. 22 Cyc. 616. He cannot affirm in part and dis-affirm the rest. Biederman v. O’Conner, 117 Ill. 493, 57 Am. Rep. 876, 7 N. E. 463; Bigelow v. Kinney, 3 Vt. 353, 21 Am. Dec. 589.
Mr. Labatt, in his recent Commentaries on the Law of Master and Servant, vol. 2, § 700, says: “Several decisions embody the doctrine that in an action brought by a minor servant, who has exercised his privilege of abandoning a contract, which is not obligatory by reason of his minority, the master is entitled to set off any damages which he may have sustained by reason of the withdrawal.” See authorities cited under note 2. He continues: “The rationale of this doctrine is that, ‘as the plaintiff had not performed the special contract, he cannot recover upon that, and being driven to his quantum meruit, he can only recover so much as he reasonably deserves to have under all the circumstances.’ ” See authorities under notes 2 and 3. However, this [193]*193learned author continues: “Some courts, on the other hand, refuse to make any allowance on this score, being of opinion that the logical consequence of the avoidance of the contract is that the rights of the parties should be determined in every respect on the same footing as if the contract had never been made. This doctrine, it is submitted, is the correct one. . . . If, under the supposed circumstances, the abandonment does not constitute a breach of any obligation, its effects as regards the master’s business cannot properly be taken into account.” The effect of the election of the minor to disaffirm a voidable contract is a total, and not a partial, destruction; and the parties are left to their legal rights and remedies, the same as though there had never been any contract. 1 Labatt, Mast. & S. § 10Y; Vent v. Osgood, 19 Pick. 572; Campbell v. Cooper, 34 N. H. 49; Derocher v. Continental Mills, 58 Me. 217, 4 Am. Rep. 286; authorities cited in note in 18 Am. St. Rep. 681.
If these conclusions are correct, it must be clear that this plaintiff cannot maintain his action in the form in which it was brought (22 Cyc. 628), and that the authorities, relating to the abstract question of the right of the defendant to maintain an action for damages for the breach of a contract, and to recoup or offset such damages in an action for the value of the services rendered, are not applicable to the case before us. Unquestionably an action may be maintained for the value of the services rendered (22 Cyc.
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Spalding, Ch. J.
The question for determination seems to be, may an infant sue on an express contract, which he has disaffirmed after partial performance, and, if so, may the defendant recoup or offset-damages for its breach by the infant ? The statutory provisions pertinent to the question are found in § 4014, Eev. Codes 1905, providing that a minor may make any contract other than as above specified in the same manner as an adult, subject only to his power of disaffirmance under the provisions of this chapter, and subject to the provisions of the chapters on marriage and on master and servant. The exceptions referred to have no application to this case. Section 4023 empowers a minor to enforce his rights by civil action or other legal proceedings in the same manner as a person of full age, except that a guardian must be appointed to conduct the same. Section 4015 permits the infant to disaffirm his contracts, except those for necessaries and any expressly [191]*191authorized by statute; aud if the contract is made when he is under the age of eighteen years, he may disaffirm it either before his majority or within one year’s time afterwards, while if the contract is made while-he is over the age of eighteen, it may be disaffirmed by him upon restoring the consideration or paying its equivalent, with interest.
In an application for judgment upon the pleadings, the motion admits the truth of all well-pleaded facts in the pleading of the opposite-party (31 Cyc. 606; Walling v. Bown, 9 Idaho, 184, 12 Pac. 960); hence, for the purpose of this action the contract is as set forth in the answer of the defendant (Willis v. Holmes, 28 Or. 265, 42 Pac. 989). This eliminates all consideration of the allegation contained in theeomplaint, that the plaintiff was to receive $26 per month, if he quit the services of the defendant before the close of the season.
When the plaintiff alleges an express contract as a basis for recovery, he cannot recover on an implied contract or quantum meruit. Lowe v. Jensen, 22 N. D. 148, 132 N. W. 661, and authorities cited; Tharp v. Blew, 23 N. D. 3, 135 N. W. 659. This question has been so recently passed upon by this court that no discussion is necessary. It is apparent in the case at bar that, if the plaintiff might recover upon quantum meruit, the complaint contains no allegations of the-value of the services. Hence, no foundation is laid for such a recovery.
We need not consider what the rights of the parties would be, had this action been brought upon quantum meruit, as that question is not involved under the pleadings, nor under the motion for judgment on the pleadings and the stipulation made by the parties in open court, to which reference has been made.
Legislatures and courts have sought to protect the rights of minors by rendering their contracts void in some cases and voidable in others. The contract pleaded was voidable only at the instance of the plaintiff. The theory of the legislatures and courts seems to have been that minors are, by reason of mental immaturity and lack of experience, unable to deal with adults on an equality, or to protect their own rights and interests. There is a great conflict of authority on every phase of contracts of infants, and particularly upon those which have been partially performed and disaffirmed by the infant before reaching majority. Some courts have carried the doctrine of their incapacity to such a limit that its application seems to work greater injustice than [192]*192would be caused by its abrogation; but we are dealing, in a measure, with legislative provisions and inhibitions, which are not altogether clear or comprehensive. In fact, the distinguished legal authority, the late Mr. A. C. Freeman, analyzes and comments upon the provisions of the California statute, which are in all material respects identical with our own, including the sections quoted, as follows: “The Civil Code of California contains several sections on this subject, which, as amended, exhibit a minimum acquaintance with the general law and a maximum obscurity of thought. The sections certainly have not the ‘pride of ancestry,’ and we will venture to predict that in an intelligent community they have not the ‘hope of posterity.’ ” After further analyzing and commenting upon them, he says: “These distinctions made by the codifiers are perfectly senseless.” 18 Am. St. Rep. 580, note.
The minor cannot disaffirm his express contract when partially performed, and in a suit on the contract recover his wages for the time he worked. The reason for this is that he cannot both disaffirm and affirm his contract at the same time. He cannot disaffirm it for the purpose of escaping the burdens it imposes upon him, and affirm it for the purpose of obtaining all or any part of the benefits which accrue to him. It is either a contract or it is not a .contract. If he elects to disaffirm it, and having elected to disaffirm it, the disaffirmance relates back to the inception of the contract and from the beginning it is no longer a contract. 22 Cyc. 616. He cannot affirm in part and dis-affirm the rest. Biederman v. O’Conner, 117 Ill. 493, 57 Am. Rep. 876, 7 N. E. 463; Bigelow v. Kinney, 3 Vt. 353, 21 Am. Dec. 589.
Mr. Labatt, in his recent Commentaries on the Law of Master and Servant, vol. 2, § 700, says: “Several decisions embody the doctrine that in an action brought by a minor servant, who has exercised his privilege of abandoning a contract, which is not obligatory by reason of his minority, the master is entitled to set off any damages which he may have sustained by reason of the withdrawal.” See authorities cited under note 2. He continues: “The rationale of this doctrine is that, ‘as the plaintiff had not performed the special contract, he cannot recover upon that, and being driven to his quantum meruit, he can only recover so much as he reasonably deserves to have under all the circumstances.’ ” See authorities under notes 2 and 3. However, this [193]*193learned author continues: “Some courts, on the other hand, refuse to make any allowance on this score, being of opinion that the logical consequence of the avoidance of the contract is that the rights of the parties should be determined in every respect on the same footing as if the contract had never been made. This doctrine, it is submitted, is the correct one. . . . If, under the supposed circumstances, the abandonment does not constitute a breach of any obligation, its effects as regards the master’s business cannot properly be taken into account.” The effect of the election of the minor to disaffirm a voidable contract is a total, and not a partial, destruction; and the parties are left to their legal rights and remedies, the same as though there had never been any contract. 1 Labatt, Mast. & S. § 10Y; Vent v. Osgood, 19 Pick. 572; Campbell v. Cooper, 34 N. H. 49; Derocher v. Continental Mills, 58 Me. 217, 4 Am. Rep. 286; authorities cited in note in 18 Am. St. Rep. 681.
If these conclusions are correct, it must be clear that this plaintiff cannot maintain his action in the form in which it was brought (22 Cyc. 628), and that the authorities, relating to the abstract question of the right of the defendant to maintain an action for damages for the breach of a contract, and to recoup or offset such damages in an action for the value of the services rendered, are not applicable to the case before us. Unquestionably an action may be maintained for the value of the services rendered (22 Cyc. 617); but the authorities are greatly divided oh the question of recoupment, some holding that it may be had, others that it may be in effect taken into consideration by the jury or court, in connection with all the circumstances surrounding the services rendered, while still others hold that, inasmuch as there never was a contract, there is no breach of duty in quitting the services of the employer, and hence no such offset or recoupment can be had.
The parties having stood upon the motion for judgment on the pleadings, that motion having been for judgment for the amount claimed by the plaintiff, and it having been stipulated that, if the motion should be granted the judgment should be for the full amount, while if not granted, the judgment should be for $39, our conclusion is that the court was in error in fixing the amount of recovery, and that it should have been for $39 only. The same result would be [194]*194attained, we think, if we were to hold that the minor could maintain an action on the contract after disaffirmance, because in such case it would be most unjust and inequitable to permit him to stand upon his contract, in so far as it was beneficial to him, and repudiate it as to other provisions, especially without any showing that the contract was unreasonable or that advantage had been taken of his minority. If he is allowed to institute an action upon the contract, he must suffer all the consequences which properly inhere in the contract. He could not reject it in part. Sec. 4023, supra, does not apply to a voidable contract which has been disaffirmed. It protects the infant in his rights as fixed by the statute, and enables him to bring and maintain appropriate actions. The District Court is directed to modify its judgment in accordance with this opinion. The appellant will recover his costs in this court.