Whitcomb v. Joslyn

The opinion of the court was delivered by Dunton, J. I. It is not controverted that all contracts entered into by an infant, except for necessaries, can be disaffirmed by him, and, if executed, the money paid, or other property delivered thereon by him, recovered back, if he restore to the other party what he received therefor. In the case at bar, the defendant took possession of the wagon by virtue of a lien reserved thereon by him, so that, by his own act, the property sold by him to the plaintiff went back into his, the defendant’s, possession. This left nothing for the plaintiff to do to entitle him to the money paid by him towards the wagon but to disaffirm the contract. This he did ; and his right of recovery is not affected by the fact that the wagon depreciated in value while in his possession by reason of use or otherwise. The plaintiff is no more liable for the use of the wagon than for its agreed price ; neither the wagon, nor the use of the same, by anything appearing in the case, can be claimed to be necessaries, for which he would be liable. Price v. Furman, 27 Vt. 268. II. Does the fact that the plaintiff, at the time he traded for the wagon, falsely represented to the defendant that he was of age, affect his right of recovery in this case ? We think not. To hold that he is estopped by such representations from avoiding the contract by asserting his infancy, would be an exception to the law governing this class of cases. Such representations cannot be of any greater force to bind the plaintiff than the contract itself; but whether the plaintiff would be liable to the defendant for the deceit, in an action ex delicto, is a question we have no occasion to consider or decide. In our opinion, the false representations complained of do not make the contract any more binding than it, otherwise would be. Burley v. Russell, 10 N. H. 184; Fitts v. Hall, 9 N. H. 441; Schoul. Dorn. Rel. 567. Judgment affirmed.