90 S.E. 580 (N.C. 1916)

• Decision Date: 22 November 1916
• Docket Number: 400 C.
• Citation: 90 S.E. 580,172 N.C. 569
• Parties: CHANDLER v. JONES ET AL.
• Court: North Carolina Supreme Court

90 S.E. 580

172 N.C. 569

CHANDLER v. JONES ET AL.

No. 400 C.

Supreme Court of North Carolina

November 22, 1916

Appeal from Superior Court, Guilford County; Ferguson, Judge.

Action by Eula M. Chandler against J. W. Jones and others. Judgment for plaintiff, and defendants appeal. Reversed, and new trial granted.

If defendant, while plaintiff was an infant, at her request advanced money as payment on a contract to be used to discharge a mortgage lien, and money was so used, upon a disaffirmance of payment by plaintiff, defendant had right to be subrogated to rights of mortgagee and enforce mortgage against plaintiff and her husband.

This is an action to recover the sum of $600 alleged to be due by contract. The defendant admitted the execution of the contract, and alleged that he had paid the sum of $500 thereon. On the 30th of April, 1890, the defendant and his wife entered into a contract, under the terms of which the defendant was to become the owner of a certain tract of land if he survived his wife, upon the payment of $600 to the plaintiff, who was then Miss Eula Vanstory, and it is upon this contract that the plaintiff is suing to recover the $600. The defendant was examined as a witness in his own behalf and testified as to the payment of $500 as follows:

"Q. State whether or not you every made any payments to the plaintiff on this contract, and, if so, how much."

To this the plaintiff objected. By permission of the court, the witness was examined by plaintiff's counsel, and the witness testified that the plaintiff was Eula Vanstory before she was married; that the alleged payment was made seven months after her marriage, and while she was yet only 16 or 17 years of age. Upon objection and exception by plaintiff to each and all of the following questions and answers, taken and noted in apt time, Mr. Jerome, the defendant's counsel, was allowed to proceed as follows:

"Q. State whether or not Mrs. Chandler, the plaintiff in this case, was married at the time you made this payment. A. Yes; she was married seven months before that. She was married on the 2d day of February, and it was in the fall when the payment was made, the November after her marriage. The mortgage will show the date of this payment. Q. How come you to pay her the sum of $500 on the 24th of November, 1893? Q. On the 24th of November, 1893, state whether or not you paid Mrs. Chandler any money. A. A check for $500. Q. What was done with this check? A. Turned over to the man of whom they bought the land, J. A. Lambeth, who is so ill he could not come to court, and the mortgage was canceled, and it is in his possession. Q. State whether or not that check was collected. A. Yes; it was collected. Q. That was in 1893? A. Yes, sir. Q. How old was the plaintiff at that time? A. She had been married a few months. Q. Was she married in the early part of the year? A. Yes; the first of November (February). Q. And this payment was made in November afterwards? A. Yes; the money was paid. Q. Since you made the payment, in November, 1893, has the plaintiff ever claimed or demanded the payment of that $500 of you? Q. When did you first hear of her claiming you had not paid her the $500? A. Soon after my wife died; it was not due until she died. I had the money on hand, and let them have it as an accommodation, and I have been out of the use of the money very nearly 23 years."

The wife of the defendant died in November, 1915. At the conclusion of the evidence, the court--

"being of the opinion that the alleged payment, having been made to the plaintiff when she was a minor not exceeding 16 years of age in November, 1893, and Mrs. Jones, wife of the defendant not having died until November, 1915, and it not appearing to the court, or claimed by the defendant, that the money alleged to have been paid to the plaintiff was invested in land, the title to which was made to the plaintiff, the court is of the opinion that the alleged payment to the infant plaintiff is not a payment under the contract, and excludes the evidence, to which the defendant excepted."

His honor then directed the jury to answer the issue in favor of the plaintiff, and the defendant excepted. Judgment was entered upon the verdict, from which the defendant appealed.

Cooke & Fentress and Jerome & Jerome, all of Greensboro, for appellants.

King & Kimball, of Greensboro, for appellee.

ALLEN J.

It was held by his honor, as matter of law that the payment of $500 by the defendant to the plaintiff, while she was a minor, did not operate to discharge pro tanto his debt to her, and, as the jury was not permitted to consider the evidence introduced by the defendant, we must, for the purposes of this appeal, accept it as true, and give the defendant the benefit of all reasonable inferences that may be deduced from it. When it is so considered, it establishes that a contract was entered into on the 30th of April, 1890, by the defendant and his wife, by virtue of which the defendant was to become the owner of a certain tract of land if he survived his wife, upon the payment of $600 to the plaintiff, who was then Eula Vanstory; that the said Eula Vanstory intermarried with A. D. Chandler before she was 21 years of age; that she and her husband bought a tract of land of one Lambeth; that there was a mortgage upon the land; that the plaintiff and her husband requested the defendant to advance the sum of $500 on the amount due by him to the plaintiff under the contract with his wife, for the purpose of paying off and discharging the mortgage on the land bought by the plaintiff and her husband; that the defendant advanced the said sum to the plaintiff and her husband, and that it was used in paying off and discharging the said mortgage; that the plaintiff became 21 years of age about 19 years ago, and that she has done no act disaffirming said payment until the commencement of this action.

Do these facts furnish evidence of a ratification by the plaintiff, or can she now disaffirm the same and recover the full amount of $600? The contract of an infant is voidable and not void, and it may be either ratified or disaffirmed upon attaining majority at the election of the infant. If money is paid to an infant upon a contract and it is consumed or wasted, the infant may recover the full amount due under the contract, but if the money is used for his benefit and he has in hand property in which it has been invested, he cannot retain the property without allowing a just...