Nolan v. Jones

Adams, Ch. J. i. evidence: tract™1'con In the certificate of appeal seven questions are certified, but in our opinion they may properly be reduced to two; viz, whether the offered testimony was admissible under the pleadings, and if so, whether it was admissible as against a minor. The defendant insists that the testimony was inadmissible, because it was offered to show fraud, and there was no allegation of fraud in the petition, and none in a reply to the answer, no reply having been filed. This action was not brought to rescind a contract, nor to recover damages for fraud. It was brought upon the simple theory that the plaintiff had the title to the mare, and right of possession. The plaintiff’s averment, when set out in full, is as follows: “ that at the commencement of this action he was, and still is, the unqualified and absolute owner by purchase of one dark sorrel mare named Jennie; that plaintiff then was, and still is, entitled to the immediate possession thereof; that the defendant wrongfully detains the property from the plaintiff.” Ordinarily, this would certainly be sufficient to enable him to prove title and right of possession. But the plaintiff went further than that in his averment. lie had parted with the possession under a supposed contract of exchange. He avers, in substance, that the defendant relies upon such contract, but that his pretenses in regard to the existence of such contz’act are false. He does not expressly aver that he was induced to make the exchange by fraud, but he does negative the validity of the contract, and we think it was proper for him to introduce evidence to show that the pretended con [390] tract was void. The action was brought originally before a justice of the peace, where not quite the same strictness of pleading is required as in the District or Circuit Court. 2____ mmor' It only remains to be considered whether the evidence of fraud was inadmissible as against a minor. In determining this question, it should be borne in mind that the action is not brought to recover damages for deceit or fraud in a sale. If so, it would be necessary for the plaintiff to affirm the sale. “An action on a sale is an affirmance by the plaintiff of the sale.” Cooley on Torts, page 107. Now, as a minor cannot make himself liable upon his contracts of sale, no action for,damages for deceit or fraud in a sale can be maintained against him. But the plaintiff’s case proceeds upon the theory that there was no sale, and if what he offered to prove was true, there certainly was none, unless the law is that fraud by a minor in procuring a contract will not vitiate it. Our attention has been called to no case where such doctrine has been held, and such, we think, is not the law. In our opinion, the Circuit Court erred in excluding the offered evidence. Eeversed.