Collins Ex Rel. Collins v. Norfleet-Baggs, Inc.

Stacy, C. J. When an infant elects to disaffirm a contract, relative to the sale or purchase of personal property, other than one authorized by statute or for necessaries, what are the rights of the parties ? 1. An infant may avoid such a contract, either during his minority or upon arrival at full age. Pippen v. Insurance Co., 130 N. C., 23, 40 S. E., 822. 2. Upon such avoidance, the infant may recover the consideration paid by him, either in money or property, with the limitation that he must restore whatever part of that which came to him under the contract he still has, or account for so much of its value as may have been invested in other property which he has in hand or owns and controls. Hight v. Harris, 188 N. C., 328, 124 S. E., 623; Millsaps v. Estes, 137 N. C., 536, 50 S. E., 227, 14 R. C. L., 238. 3. But the infant is not required to account for the use or depreciation of the property while in his possession, or for its loss, if squandered or destroyed, for this is the very improvidence against which the law seeks to protect him (Utterstorm v. Kidder, 124 Me., 10, 124 Atl., 725), with the exception, perhaps, that he might be required to account for any insurance money received by him, on the theory that such money was a substitute for the property destroyed. Morris Plan Co. v. Palmer, 185 N. C., 109, 116 S. E., 261; Devries v. Summit, 86 N. C., 132. 4. The infant, however, would be liable for any tortious use or disposition of the property after such avoidance and before its surrender to those from whom it was obtained. Devries v. Summit, supra. 5. Where the infant parts with personal property he may, upon dis-affirmance, recover the value of such property, as of the date of the contract, but he is neither bound by, nor entitled to be awarded, the price fixed by the contract, for its real value may be more or less than the amount so stipulated. Carpenter v. Grow, 247 Mass., 133; Beickler v. Guenther, 121 Iowa, 419. Neither side is bound by any part of the contract, when once rescinded. Morris Plan Co., v. Palmer, supra. In the instant case the plaintiff is entitled to recover the $40.95 which he paid on his note, together with the fair market value of the Chevrolet truck at the time of the trade. But he is not entitled, as a matter of law, to the sum of $250, the stipulated exchange value of said truck. In so instructing the jury, the trial court committed error. Its market value may be more or less than its stipulated exchange value. *661 If tbe Chevrolet truck is to be returned to tbe plaintiff, tbe jury will fix its value, as of tbe date of tbe contract, by assessing a reasonable amount for depreciation and use,, if any, while in tbe possession of tbe defendant. ' For tbe error, as indicated, in tbe court’s instruction on tbe measure of damages, a new trial must be awarded; and it is so ordered. New trial.