Sparr v. Florida Southern Railway Co.

Mitchell, J.: The appellant, Sparr, borrowed of the appellee, Florida Southern Railway Company, $500, and gave therefor his two promissory notes; one dated April 2d, 1885, for $200, and payable to appellee or order, at Palatka, Fla., on the first day of July, 1885, with interest at 10 per cent, per annum; the other note bearing date said 2d day of April, 1885, for $800, with 10 per. cent interest per annum, and payable to the order of appellee at Palatka, Fla., April 15th 1886 ; and to secure the payment of said notes, Sparr, on said 2d day of April, 1885, executed and delivered to the appellee a chattel mortgage upon a certian steam boat “ Little Bay,” her masts, bowsprits, sails, boats, anchors, cables and all other necessaries to said vessel, appertaining and belonging, the said vessel being at the time on Orange Lake, Florida, which mortgage in addition to the condition for the payment of said notes, contains astipulation or agreement to the effect that Sparr was not to allow the “ Little Bay ” to be sold for taxes; and that he shall not allow said vessel to be levied upon by writ of attachment, or execution, or legal process of any kind, and shall in the meantime, keep said vessel insured in the sum of $500, if the same can be obtained, and shall, till the said indebtedness is fully discharged, deliver to the complainant all freight received by the vessel that can be delivered by the complainant, Florida Southern Railway Company and its connections, and shall pay all costs and charges, including reasonable attorney’s fees, the complainant or its successors and assigns may incur in collecting said money by foreclosure or suit. * * — 196 — The notes fell due and were unpaid, and the complainant afterwards, (on 25th of April, 1886,) filed its bill in the circuit court of Marion county against Sparr, to foreclose the mortgage. The bill alleges that Sparr did not insure the vessel, “ Little Bay,” in any sum ; that he has not delivered to the complainant all freight received by said vessel that could be delivered by complainant and its connections ; and that Sparr, in violation of his covenants and agreements in the mortgage, has at divers times since the execution and delivery of the mortgage, knowingly and wilfully delivered freight from said vessel to the Florida Railway and Navigation Company to the great loss, injury and detriment of complainant, and has grossly used and mismanaged the business of the said'vesselso that the same has remained idle and unproductive, and by such negligance and mismanagement has suffered and permitted the •said vessel and her machinery, masts, &c., to become injured and damaged, and greatly depreciated in value, thereby greatly impairing complainant’s security for the payment of the said sum of money. * * The prayer of the bill is for foreclosure and for receiver Afterwards there appeared in the case what is called an “ amended bill,” but it bears no file mark, and is not signed by counsel. Copy of mortgage and notes filed and made Exhibits “ A,” “ B,” “C.” On the rule day to which the writ was returnable, the papers were not in the office of the Clerk of the Circuit Court of Marion county, and hence the defendant, Sparr, could not plead, answer or demur thereto. •‘ The defendant by his solicitors entered a special appearance in said cause June 7th, 1886. On the 29th day of June, 1886, a receiver was appointed — 197 — in said cause, and the said vessel was placed in his charge by the Sheriff of Marion county under the order of the Judge of said court, and so far as the evidence shows the said vessel, “ Little Bay,” still remains in charge of said Eeceiver. On October 18th, 1886,defendant entered motion to vacate theorder appointingEeeeiver,and the order granting injunction, and affidavits fro and con were filed upon said motion, which motion was overruled November 2d, 1886. On the 6th day of September, 1886, the defendant, Sparr, filed his plea and answer. The plea sets up the infancy of Sparr at the time the mortage and notes were made and executed by him to the complainant, and avers that he was only twenty years of age at said time, and for answer denies that the business of the vessel, “ Little Bay,” was over mismanaged by him or that he has ever suffered the same (the vessel) to become injured, damaged or depreciated in value, in any way whatever, but avers that this allegation of the bill is utterly false. Defendant makes no answer as to the “ amended bill,” treating it as a nullity. This plea and answer was demurred to: 1st. Because the plea of infancy seeks to avoid a contract, pleaded an alleged to have been signed during infancy without alleging that said contract has been repudiated since reaching majority, or that it was a contract which an infant could not have signed. The other grounds of demurrer we do not think it material to consider. The demurrer was overruled. On December 6th, 1886, H. E. Duval, as Eeceiver for the Elorida Eailway and Navigation Company, filed his petition in the Circuit Ooui’t of Marion county to be made a — 198 — party defendant to said suit, the petition setting up the appointment and qualification of said Receiver, and that said Florida Railway and Navigation Company in or about the month of August, 1885, bought from William S. Sparr, defendant in this suit, fifty-one one hundredths (51-100) of the steamer “ Little Bay ” and paid him for the purchase thereof, &c. On the 9th of December, 1886, defendant, Sparr, -filed notice that he would apply to the court for an order restoring to him the said steamer “ Little Bay.” Upon hearing said petition (December 14th, 1886), IT. R. Duval, as Receiver of the Florida Railway and Navigation Company was made a party defendant to said suit, and on the same day. said Receiver filed his answer, in which he.sets up the purchase of the interest in the steamer, “ Little Bay,” by the Florida Railway and Navigation Company as stated in petition, and at the time of said purchase of said iuterest in said steamboat there was no lien or incumbrance of any kind on - said steamer of which the Receiver of the Florida Railway and Navigation Company was aware. That the chattel mortgage from Sparr to the Florida Southern Railway Company was not a matter of record in the Clerk’s office in either of the counties of Alachua or Marion of the State of Florida, wherein the said steamboat “Little Bay ” was at the time of said purchase held and detained. That if Sparr entered into the agreement as alleged as to freight traffic, &c., with the Florida Southern Railway Company it was only a personal obligation, and that the Florida Railway and Navigation Company bought a controlling interest in said steamboat, without any knowledge of the existence of such contract and that said steamer and the interest of the said Florida Railway and Navigation Company therein cannot be made — 199 — liable to the complainant in any damages for the breach thereof, &e. On the same day (December 14th, 1886) the motion to dissolve the injunction, &c., was overruled. From this order overruling said motion defendants appealed, and filed ten assignments of error. The seventh error assigned is: the mortgage is void. Upon this ground the whole case hinges. Story lays down the doctrine as to contracts with infants as follows: “ An infant may not only refuse to perform his executory contract during his infancy, but he may disaffirm them when he comes of age, and leave the other party remediless. As where he borrows money and expends it, or purchases goods and sells them, or consumes them, or makes a promissory note, he cannot be compelled to pay even though he has received all the benefit thereof; and the plea of infancy is a perfect defense both for the infant and his representative. So also when the contract is executed, he may ordinarily disaffirm it at any time ; as where he sells any article, he may reclaim it upon tendering the price he paid ; or if he lease lands, he may receive-the rent and suffer the lessee to remain, or he may rescind the contract, and treat the lessee as a tresspasser. And if he convey by bargain and sale, he may avoid such conveyance without entry, or he may convey to another person without notice to the first purchaser * *. Every person deals with an infant at arms length, at his own risk, and with a party for whom the law has a jealous watchfulness * *, 1 Story on Contracts, secs. 104, 105, 108. (See also Dicey on Parties to Actions, marg. pages 12, 284, 474, and cases cited. 15 Gray R. 445; 97 Mass., 508; 27 Md., 327). — 200 — It is true that a minor may affirm a contract not tortious after attaining his majority, but in the case before us there is no allegation that Sparr ever at any time, after he arrived at the age of 21 years, affirmed his contract as to the promissory notes or the mortgage, the basis of this suit, but on the contrary it is shown that shortly after attaining his majority he filed his plea setting up his infancy, thus disaffirming said contract, and when he did so and the plea was held good, and was not disproved by the affidavits adduced by the complainants on the motion to vacate the order granting the injunction and appointing Receiver, or otherwise, but was affirmatively shown by an affidavit in the cause, the refusal of the court to vacate the order granting the injunction, and the appointment of a Receiver, was erroneous. Reversed with directions to dissolve the injunction and to vacate the order appointing Receiver in said cause.