Gambrel v. Harper

Sykes, J., delivered the opinion of the court. The plaintiff in the court below, a minor, appellant here, sued the defendant (appellee) in a justice of the peace court of Jones county for one hundred and fifteen dollars, the price and value of a mule. From a judgment in the justice of the peace court an appeal was prosecuted to the circuit court. At the trial in the circuit court the testimony of the appellant showed that she was the owner of the mule, which had been given her by her father; that her father was indebted to the appellee, J. L. Harper, and with her permission turned her mule over to Harper at an agreed value of one hundred and fifteen dollars to be credited on this indebtedness. . The appellee knew nothing about- the claim of ownership of the appellant to this mule. A peremptory instruction was given, in favor of the appel-lee at the conclusion of all the testimony. The sole question presented to this court for decision is whether or not the appellant, a minor, can avoid the contract of her father made with her consent for the sale of her mule to the appellee. Had she sold the mule to appellee, she would have had the right to avoid the contract and maintain this suit. Consenting to the sale by her father would not be more binding on her than her own contract. The facts here are very much like those in the case of Upshaw v. Gibson, 53 Miss. 341. As is said in that case. “It is certain that she could not have contracted a valid sale of the mules or other personal property, and that the rights of third persons had supervened makes no difference. . . . “Did her silent consent, deduced from her failure to proclaim her rights and object to the'sale, confer any greater right on Humphreys than her contract would have done® [720] To which question the court ánswered “No.” It therefore follows that the circuit court was in errr in granting the peremptory instruction for the defendant. Reversed cmd remanded.