Hicks v. . Beam

A vkky, J.: The defendant having contracted to compensate the plaintiff for liis services, which were subsequently rendered, could not avoid the obligation to pay the debt by setting up the plea of plaintiff’s infancy. The right to avoid the contract on that account was a peculiar personal privilege of the infant. Brown’s Domestic Rel., p. 106; *644 10 Am. and Eng. Enc., 637. While the disability continued, therefore, the contract in this case was binding upon the defendant, though the infant was left at liberty to either affirm or repudiate it at his option, on arriving at full ago. Where, however, suit is brought for the services of an infant in his own name by his guardian or next friend, the decree is conclusive on him as well as the party for whom he performs the labor, though he might, if no action had been instituted, have disaffirmed the contract on which it was founded, on arriving at maturity. Webster v. Page, 54 Iowa, 461. When the infant, without the intervention of guardian or next friend, undertakes to prosecute his suit in his own name only, the debtor has a right to object to his recovery, because the judgment, like the contract, may be repudiated or affirmed and enforced at the election of the former, if rendered before ibis majority. Schouler Domestic Rel., sec. 268; Tate v. Mott, 96 N. C., 19. But such objection must be interposed in apt time and in the prescribed mode, which is by plea in abatement, so as to afford an opportunity to the plaintiff, on such terms as the Court may deem just, to amend by inserting the name of a guardian or next friend, and thus obviating the difficulty. Schouler, supra, sec. 449, pp. 449 and 450; Blood v. Harrington, 8 Pick. (Mass.), 552; Young v. Young, 3 N. H., 345; Drago v. Moso, 1 Speer L. (S. C.), 212. The defendant relied upon a general denial, which was equivalent to a plea of vil debet, and the subject-matter of the action being within the jurisdiction of the Court, the defendant would have been required under the old rules of pleading to have filed a formal plea in abatement in order to avail himself of the objection to the disability of the plaintiff. Branch v. Houston, Busbee, 85; Clark v. Cameron, 4 Ired., 161. Under the new system, however, such a defence must be in some way (though *645 informally) .set up in the answer and insisted on before the trial on the merits, and if not so pleaded it will be considered as waived. Hawkins v. Hughes, 87 N. C., 115; Blackwell v. Dibbrell, 103 N. C., 270 ; Montague v. Brown, 104 N. C., 161 ; Harrison v. Hoff, 102 N. C., 126; Pom. R. and R., sec. 721. The defendant in the case under consideration might have set up this preliminary defence along with the general denial, either by memoranda in the nature of a plea or by an answer in the Justice’s Court, or after appeal in the Superior Court by leave, and under the rule laid down in the cases which we have cited it was his right to demand that the defence be passed upon in some way before the trial on the merits. Following the suggestion made in Blackwell v. Dibbrell, supra, the jury might have been instructed that if they should respond to the issue involving the question whether the plaintiff was an infant in the affirmative, it would be unnecessary to proceed further and pass upon those involving the merits. It was too late to raise the question by motion to dismiss after the testimony bearing upon the merits had been heard. The defendant may ordinarily get the benefit of the objection that the plaintiff' is an infant by motion to amend at this stage of the proceeding, if the Court in its discretion allows the amendment. Tredwell v. Broder, 3 E. D. Smith (N. Y.), 597. But where the disability still continues, when such motion is made, the usual practice of the Court is to protect the infant by allowing him also to amend his summons and complaint by inserting the name of a guardian or next friend. Schouler, supra, sec. 449. The defendant had waived objection to the disability while it existed by entering and relying upon a general denial of indebtedness as his sole defence, and after the evidence had been heard upon the merits it was in this particular case too late to raise it then, even by motion to amend, because, meantime, *646 pending the action, the plaintiff had arrived at full age and had ratified and affirmed all that had been done his attorney for him in the previous stages of the proceeding by persisting in the prosecution of the action. AVherc an infant institutes an action in his own name, if beforb judgment lie attains full age, or the Court allows an amendment to the pleadings inserting the name of a guardian or next friend, in either event the judgment is binding both upon the infant and the defendant. Reed v. Rossie, 47 Hun., 153 ; Webster v. Page, supra. We think that the judgment of the Court below should bo . Affirmed.