Perelson v. Podolsky

Mr. Justice McSurely delivered the opinion of the court. Judgment by confession was entered against the defendants on a judgment note signed by them. On motion to vacate, the court, after hearing testimony, denied the motion. By their testimony defendants sought to prove that the money for which they signed the note was a present to them from the plaintiff and that they thought they were signing simply a receipt instead of a note. Plaintiff denied that she gave the money as a gift to the defendants, and said it was a loan to them. We see no sufficient reason to disagree with the conclusion of the trial court in finding with the plaintiff on this question of fact. While the judgment is proper as to the defendant Mrs. Charles F. Podolsky, there was an adequate defense shown by Charles F. Podolsky, namely, his infancy when he signed the note. That he was a minor at this time, and still was a minor at the time of the trial, is undisputed. In the opinion in Cole v. Pennoyer, 14 Ill. 158, is a discussion as to what contracts by an infant are void or only voidable and the conclusion is stated thus: 11 The only contract binding on an infant is the implied contract for necessaries; the only act which he is under a legal incapacity to perform, is the appointment of an attorney. All other acts and contracts, executed or executory, are voidable or confirmable, by turn, at his election.” No later decision has changed this rule, but rather it has been followed in numerous cases. It follows, therefore, that the power of attorney in the note was absolutely void as to Charles F. Podolsky. We are hot favored with any brief on behalf of the defendant in error, but if it should be said that the trial court was moved to hold the judgment good as to Charles F. Podolsky because no equitable reason appeared for relieving him from his undertaking, it is sufficient to reply that this is not a case for the application of equitable considerations. The defendants did not have in their possession the money obtained from plaintiff and, as is said in Wuller v. Chuse Grocery Co., 241 Ill. 398, “the consideration, or such part of it as remains in the possession or control of the minor, must be returned, but if he has lost or expended it, so that he cannot restore it, he is not obliged to make restitution. ’ ’ And the same case is authority for the statement that while a minor’s disaffirmance of his obligation may operate injuriously and unjustly against the other party, the right to disaffirm exists for the protection of the infant against his own improvidence and may be exercised entirely at his discretion. The reason why the fact that an infant has received benefit should not deprive him of his right to disaffirm his obligation is stated in the opinion in Coe v. Moon, 260 Ill. 76, 83: “To give effect to an infant’s disaffirmance of his contract it is not necessary that the other party he placed in statu quo, for if the law in every case required restitution of the consideration as a condition precedent to the disaffirmance of a contract, it would often result in accomplishing indirectly what it expressly says shall not be done directly, and the purpose of permitting infants to avoid their contracts might often be thus defeated.” Charles F. Podolsky having elected to disaffirm his obligation on the ground of his infancy, the trial court should have vacated and set aside the judgment against him. However, it does not follow that the judgment must be regarded as a unit, and if set aside as to one defendant must he set aside as to all. The exception to the usual rule in this respect is where one of the defendants pleads a personal defense, such as infancy, coverture, lunacy and the like. In such a case the judgment will be set aside as to him who pleads such defense, but will be held good against other defendants. Briggs v. Adams, 31 Ill. 486. Where a judgment is entered against an adult and an infant, the fact that the judgment is void as to the infant cannot invalidate the judgment against the adult. Reid v. Degener, 82 Ill. 508. See also Lowis v. Conrad Seipp Brewing Co., 63 Ill. App. 345. The judgment against Mrs. Charles F. Podolsky is affirmed, and the judgment against Charles F. Podolsky is reversed. Affirmed in part and reversed in part.