Ray v. Tubbs

The opinion of the court was delivered by Royce, J. The referee has found that when the defendant hired the first horse of the plaintiff, it was understood and agreed between the parties that the horse should not be driven any further from Brattleboro than Greenfield, and that the horse he first [694] hired was exchanged for the one that subsequently died, for the reason as given by the defendant that the horse he first hired was sick. The referee has not found expressly that there was any agreement made between the parties upon the occasion of the defendant’s taking the second horse, as to where, and how far, he was to have the right to drive him. But we think that the fair and legitimate inference is, from what is found, that the defendant took the second horse subject to the same conditions as to the distance he was to have the right to drive him that he did the first; and hence, that when he drove the horse beyond Greenfield, it terminated the contract of bailment, and rendered the defendant liable in tort for any damage that might result to the horse in consequence of his driving him beyond Greenfield. It was so held in Green v. Sperry, 16 Vt. 390; and Towne v. Wiley, 23 Vt. 355. The referee has found that the horse was overdriven, and died from the effects of such overdriving. The overdriving, which produced his death, was upon a route not embraced in the contract of bailment; and upon the authority of the cases cited, the defendant was liable in an action of tort, notwithstanding his infancy, for his value. The note upon which this action is predicated was given in settlement of the claim for which the defendant was so liable. It is now claimed that the tort was merged in the note, and that no recovery can be had upon the note, under the elementary rule, that the notes of an infant are voidable. The rule of the common law was, that the note of an infant given for necessaries was voidable. But in Bradley v. Pratt, 23 Vt. 378, the court held that the note of an infant given for necessaries was binding; and that the liability of an infant did not depend upon the form of action, but upon the consideration upon which the claim is based. This seems to us to be a reasonable rule; and that in its application, the infant is not deprived of any right which it is the object of the law to accord to him. An infant, under certain circumstances, may pledge his credit for necessaries: and if his promise to pay for such necessaries is evidenced by his note, the note is collectible. The law makes [695] him liable for his torts ; and where he elects to settle such liability by giving his note, as long as the consideration for the note is open to inquiry, we see no reason why he should not be held lia-; ble in an action upon the note, to the same extent that he would be if the action had been brought upon the cause of action which formed the consideration for the note. The note in suit having been given in settlement of a claim for which the defendant was liable, and no fraud nor imposition having been practiced in obtaining it, the plea of infancy is not available to defeat it. Judgment affirmed.