McCarthy v. Henderson

Morton, C. J. The paper, which in the statement of facto is called a lease, is merely a receipt of the plaintiff acknowledg jng that he had received a barge of the defendants, and stating the terms and conditions upon which he was to hold it. It shows that the transaction between the parties was a conditional sale of the barge for the price of $675; that the sum of $175 was paid as a part of the consideration; that the balance was to be paid by future instalments; and that, when fully paid, tho barge was to become the property of the plaintiff. Bailey v, Hervey, 135 Mass. 172. The contract made by the plaintiff was not a contract foi necessaries, nor one which was necessarily beneficial to him, He had therefore the right to avoid it at his election. Bradford. v. Trench, 110 Mass. 365, and cases cited. Gaffney v. Hayden, 110 Mass. 137. Chandler v. Simmons, 97 Mass. 508. In less than a month after the sale, the plaintiff notified the defendants of his intention to avoid the contract, and offered to return the barge to them. The defendants refused to receive it, but afterwards, at the expiration of four months from the sale, did take possession of it. The defendants have the barge, and they cannot also retain the amount paid as a part of the consideration for it. The effect of the avoidance by the plaintiff was to make the contract void ab initia. Vent v. Osgood, 19 Pick. 572. He is in the position of an infant who has paid money under a void contract and without consideration, and is entitled to recover it back. In no other way can he receive the — 313 — protection which the law affords him against contracts which he is deemed incapable of making by reason of his infancy. The defendants contend that the plaintiff cannot recover the full sum paid by him; but that the defendants are entitled to deduct a reasonable compensation for the use of the barge while it was in his possession and use. It is clear that, if the plaintiff had made no advance, the defendants could not maintain an action against him for the use of the property. The contract, express or implied, to pay for such use is one he is incapable of making, and his infancy would be a bar to such suit. We cannot see how the defendants can avail themselves of and enforce, by way of recoupment, a claim which they could not enforce by a direct suit. We are therefore of opinion that the plaintiff is entitled to recover the amount advanced by him, with interest from the date of the writ. Judgment for the plaintiff.