McKamy v. Cooper

Blandford, Justice. Cooper sued McKamy, as administrator of Miller, upon several promissory notes given in the lifetime of the intestate,'for a ten horse power traction engine. [680] The administrator pleaded that, at the time this transaction took place, his intestate was under the age of twenty-one. The case went to trial, and a verdict was found for the plaintiff’; whereupon the administrator moved for a new trial upon several grounds. 1. One of the grounds of the motion for a new trial was, that the court erred in allowing the plaintiff to amend his declaration at the trial by averring that, when Miller bought the engine, he represented that he was twenty-one years of age, and thereby perpetrated a fraud upon the plaintiff; and praying equitable relief. The objection to this amendment was well-taken. The amendment constituted, in effect, a new cause of action. But while the court may have erred in allowing this amendment, the jury were, nevertheless, instructed by the charge of the court that, although Miller may have perpetrated a fraud in alleging that he was twenty-one years of age, this would not authorize the plaintiff to recover upon the contract, if Miller was at the time an infant. 2. It is insisted that the court erred in charging that if Miller retained possession of the engine after reaching the age of twenty-one, this was a ratification of the contract and made it a good contract, although it may have been made while Miller was an infant. It was contended that this was erroneous because there was no evidence upon which to base it. ¥e find, however, upon an examination of the record, that there is sufficient evidence to authorize the charge; and under our code, the principle of law as given in charge, is correct. It was a very close question whether or not this intestate was twenty-one years of age when he made the contract. The evidence for the plaintiff' strongly inclines me to think that he was. But whether he was or not, it appears from the testimony introduced by the [681] administrator himself, that aftor the intestate had purchased the engine, and after he had arrived at the age of twenty-one, he,lived for some weeks, and did not return the engine or offer to return it; nor did the administrator, who took his place, return or offer to return it. And the administrator could have done so if his intestate, in consequence of ill health, was unable to do so in the short period he lived after attaining his majority. 3. It is further objected that the court charged that if Miller was engaged in business on his own account, by permission of the law or his parents, and this engine was bought by him to aid him in carrying on this business, he would be liable upon the contract. Such is the law, under the code, and we find some evidence in the record to authorize the charge. It is not true that it is wholly without evidence to authorize it. Looking at the whole case, we are satisfied that justice has been done, and that there are no such errors of law as would warrant us in granting a new trial. Judgment affirmed.