Hight v. . Harris

Hoke, C. J. It is recognized in this jurisdiction that, except in case of necessaries or contracts authorized by statute, an infant may avoid his contracts concerning personalty on account of his infancy; and, either during his minority or on coming of age, if be acts promptly in the matter and on such avoidance, be may recover the consideration paid by him, either in money or property, with the limitation that be must restore the consideration received if be still has the same in band, or return or account for the value of property in which it has been invested and which is still under his control and ownership. Morris Plan Co. v. Palmer, 185 N. C., p. 108; Chandler v. Jones, 172 N. C., p. 569; Skinner v. Maxwell, 66 N. C., p. 45; Ex parte McFerrin, 184 Ala., p. 223; Gullis v. Goodwin, 180 Mass., p. 140; 14 R. C. L., title Infancy, secs. 20, 21, 22, 23. *331 In the well-considered case of Bank v. Palmer, supra, Associate Justice Adams states tbe principle as it prevails witb ns, as follows : “Omitting reference to contracts for necessaries, and to sucb contracts as a minor is authorized by statute to make, tbe Court bas beld that an infant may, during bis minority, avoid bis contract relating to personal property, and tbat sucb avoidance, wben effected, is irrevocable and renders tbe contract null and void ah initio.” And again: “Tbis doctrine is established. It is approved and maintained witb practical unanimity; and while tbe infant’s right to disaffirm bis contract may sometimes be exercised to tbe injury of tbe other party, tbe right, nevertheless, exists for tbe protection of tbe infant against bis own improvidence, and may be exercised entirely in bis discretion. 1 Elliott on Contracts, sec. 302; 3 Page on Contracts, sec. 1593; Dibble v. Jones, 58 N. C., p. 389.” Tbe cause below seems to have been tried and determined in accord witb these positions, and we find no valid reason for disturbing tbe result. It is chiefly urged for the appellant tbat the appellee should not have been allowed to insist on an avoidance of the contract for the purchase of the mule, as claimed in bis action instituted in the Superior Court while there was a counterclaim presented by him on bis appeal from the justice’s court for a breach of warranty in the sale. To tbis objection it might well be answered tbat, under our system of procedure, a party is allowed to submit inconsistent pleas, and tbat in these actions, consolidated by order of court, the defendant Harris might well be allowed to plead tbat be was an infant at the time of sale, and, failing in tbat, tbat there was a breach of warranty in the sale. C. S., 522, citing Upton v. R. R., 128 N. C., p. 173; McLamb v. McPhail, 126 N. C., p. 218; Higson v. Ins. Co., 152 N. C., p. 206; Ten Broeck v. Orchard, 79 N. C., p. 518. See, also, Johnson v. Lumber Co., 147 N. C., pp. 249-252. On the facts of tbis record, however, the complete answer to tbis objection is tbat, on appeal from the justice’s court, the matters there determined" were, under our procedure, to be tried de novo; and in tendering and submitting only the issues presented by defendant’s action to set aside the contract by reason of infancy, the counterclaim for breach of warranty set up in the justice’s court should be treated as abandoned or withdrawn by appellee. Under our decisions, it was open to appellee to do tbis at any time before the final bearing. Barnett v. Mills, 167 N. C., pp. 576-584; Cook v. Cook, 159 N. C., pp. 47-50. Speaking to tbe question in Cook’s case, supra, tbe Court said: “As a general rule, tbis right to plead tbe pendency of another action between tbe same parties before judgment bad is regarded to a large *332 extent as a rule of convenience, resting on the principle embodied in the maxim, 'Nemo debet bis vexari.’ The defect is one that can be waived, and it may also be cured by dismissing the prior action at any time before the hearing.” Citing Grubbs v. Ferguson, 136 N. C., p. 60; 1st Cyc., p. 25. We find no reversible error in the record, and the judgment below is affirmed. No error.