Farr ex rel. Briggs v. Sumner

The opinion of the court was delivered by Williams, Ch. J. — It appears that the plaintiff, while a minor, purchased a span of horses and harness of the defendant and paid therefor, in part, in lumbering & another horse, and in payment of the balance voluntarily delivered to the defendant the horse which is the subject in controversy in this suit. No act has ever been done by the plaintiff to avoid or disaffirm the contract for the purchase of the span of horses and harness, but, on the contrary, he has had the whole benefit of that contract. The plaintiff assumes that the agreement made at Salisbury was in the nature of a contract of sale, and that he was at liberty to treat it as void and maintain this action of trover to recover the horse delivered in pursuance thereof. The contract of an infant, except in certain cases, is not void, but voidable only, and, in general, he cannot, while an infant, unless in case of evident necessity, disaffirm a contract made by him; as the same want of discretion, which prevents him from making a binding contract, would prevent him from avoiding one which might be beneficial to him. He is as incapable in the latter, as in the former case, of judging what is for his benefit. Whether, when he arrives of full age, it is necessary that he should do any act to avoid or affirm a contract made while under age, to render it nugatory or binding, is a ques [32] tion on which there are contradictory authorities. Undoubtedly, in some cases, it is necessary that a person should give notice of his disaffirmance, after he arrives at full age, or he will be held to a contract made during his minority. The case Goode & Benmon v. Harrison, 5 B. & A. Rep. 147, was one of this description. If an infant pay money or deliver property on a contract and enjoy the benefit of it, he cannot disaffirm the contract and recover the money paid, without restoring to the other party the consideration which he receives. This was the ground of the decision of Holmes v. Blogg, 8 Taunt. R. 508. The opinion of the court, as delivered in that case, evidently went much further than this, and took the ground, that, where an infant pays money with his own hand he cannot recover it back. This opinion was reviewed in the case of Corp v. Overton, 10 Bing. 252, and it was considered that the expressions made use of by the chief justice in Holmes v. Blogg were not warranted by the case. But when, as in the case now before us, an infant makes a contract, receives the benefit and consideration thereof, does no act to disaffirm or avoid it, and delivers property in payment and fulfilment thereof, there is no principle which will warrant a recovery by him, in an action of trover, for the value of the property thus delivered. It does not appear that any evidence was given to show that the plaintiff offered to restore to the defendant the property which he received of him, or that he was in a situation so to do, although such a state of facts is alluded to in the charge of the court. We think the court erred in their charge in relation to the effect of the infancy of the plaintiff, under the circumstances of the case, and the judgment must be reversed.