Armitage v. Widoe

• Court: Michigan Supreme Court
• Writing for the Court: Cooley, Ch. J.:
• Citation: Armitage v. Widoe, 36 Mich. 124 (Mich. 1877)
• Decision Date: 04 April 1877
• Parties: Henry Armitage v. Jesse C. Widoe

36 Mich. 124

Henry Armitage v. Jesse C. Widoe

Supreme Court of Michigan

April 4, 1877

Heard January 19, 1877 [Syllabus Material]

Error to Superior Court of Grand Rapids.

Judgment affirmed, with costs.

Thompson & Pratt, for plaintiff in error.

If the written contract in question is one voidable by the infant party before his coming of age (Tyler on Infancy, 67-9; Gaffney v. Hayden, 110 Mass. 137; 33 Conn. 201) Which was the view the court below took of it, then the plaintiff was entitled to recover by showing his non-age and payment to and receipt by defendant of the four hundred dollars on the contract. But the court submitted to the jury the incompetent evidence tending to show the incidental benefit plaintiff's father expected to derive in a contingency from his son's ownership of the property, and instructed them the only question in the case was whether the contract was made for the benefit of the father. This was erroneous: (1) Because the contract as matter of law conclusively determined the party to whose legal use the money was paid, and established the plaintiff's right of action for it, and it was not competent to contradict or amend that contract, or make a new one, by parol.--Newcomb v. Clark, 1 Denio 226; Lincoln v. Crandell, 21 Wend. 101; Harp v. Osgood, 2 Hill 216; (2) Even if competent to submit the question to the jury, whether the contract was for the benefit of the father, still it was error to instruct them, as the judge did, that the plaintiff could not recover; for the right of action was still in plaintiff, and even if restricted to the same grounds of recovery that the father would have been had he been named as the party to the contract, he would be entitled to recover by showing that defendant failed to show title or was otherwise in default, of which there was proof.--Chitty on Conts. (7 Am. ed.), 622; and the court should have explained those matters which he told the jury had nothing to do with the case; (3) Because the judge, in submitting these propositions to the jury, submitted the question whether the contract was that of plaintiff, without instructing them, as requested by plaintiff, that a subsequent ratification of and assent to the act of his agent in making the contract, by the plaintiff, was a sufficient adoption of the contract as his, or some instruction of equivalent import. --Hammond v. Hamlin, 21 Mich. 374; Fleckner v. Bank, 8 Wheat. 338, 363.

If the contract as matter of law is one not voidable by the plaintiff during infancy, then he was entitled to recover by proving that defendant failed or refused to perform the terms of the contract on his part.--21 Mich. 374; Demarany v. Gravelin, 56 Ill. 93; and there was evidence on this subject. And the court, therefore, ought not even in this view to affirm the judgment, but should order a new trial to permit plaintiff to have the question of his right to recover by reason of defendant's default passed upon by the jury.

Champlin & More, for defendant in error.

It is evident this suit was originally planted on the hypothesis that the contract was one between plaintiff and defendant, and that the former had fully performed and the latter had failed to perform in such a material part as excused plaintiff from further performance and entitled him to rescind the contract and sue to recover back the money paid down. But on the trial this position is changed and plaintiff now claims he was a minor when the contract was executed, and that it was made by his father for and on his behalf, without express authority, and that he ratified the act and assented to it, and then disaffirmed it, and is thus entitled to recover in this action the money paid by his father.

The plaintiff being, at the time the contract was made, a minor, was under a legal incapacity to appoint an agent or attorney, and was under the same incapacity to assent to or ratify an act of agency during his infancy, which lasted up to the time of the trial.--Tucker v. Moreland, 10 Pet. 58; Vasse v. Smith, Am. L. C. (5th ed.), 304-5; Saunderson v. Marr, 1 H. Bl., 75. Robbins v. Mount, 33 How. 24; S. C., 4 Rob. 553; Fonda v. Van Horne, 15 Wend. 631; Stafford v. Roof, 9 Cow. 626; Hiestand v. Kuns, 8 Blackf. 345; Cole v. Pennoyer, 14 Ill. 159; Thomas v. Roberts, 16 M. & W., 778; Trueblood v. Trueblood, 8 Ind. 196; 18 Ind. 266; Lawrence v. McArthur, 10 Ohio 37; Pyle v. Cravens, 4 Littell 17; Traples v. Hastings, 3 Harr. 403; Semple v. Morrison, 7 Monr. 298; Knox v. Flack, 22 Penn. 337.

Rights founded on a contract belong to the person who has stipulated for them.--Alton v. Midland R. R. Co., 19 C. B. (N. S.), 240; the person to sue for the breach of a simple contract must be the person from whom the consideration for the promise moves,--Dicey on parties, 97.

If the plaintiff had in fact been bound by the contract, he could not have recovered back the consideration paid, under the testimony disclosed in this record. It seems contrary to justice that he should be permitted to recover it back because he was not bound by any contract. If he can do so, it must be because, either: (1) The money when paid was absolutely his money, and the consideration for which it was paid has failed, or some other fact has arisen which entitles him to demand the money from defendant; or (2) some other party had a right prior to the commencement of this suit to demand the money in question from defendant, and plaintiff has succeeded to such right. And it is not claimed plaintiff occupies either of these positions, but he claims the money was paid for him, and that such payment is equivalent to a payment by him. While that proposition may be true in certain cases, it evidently cannot be in this. It is impossible to disconnect the payment of the money from the attendant circumstances. And these circumstances show plaintiff was an entire stranger to the transaction in fact, and he has continued to be an entire stranger to it.

There must be a contract between the plaintiff and defendant before it can be ratified by the plaintiff; and likewise must there be such a contract before it can be disaffirmed and repudiated. And there was no contract between plaintiff and defendant for two reasons: (1) The father had no authority to act for his infant son as agent in making the contract; and (2) the infant son was legally incapacitated from conferring such authority, and a fortiori from ratifying such assumed agency. Hence there never was any contract which the infant could disaffirm existing between the infant plaintiff and the defendant. This disposes of the plaintiff's right of action.

Cooley, Ch. J.

OPINION

Cooley, Ch. J.:

This action is brought to recover back four hundred dollars paid in the plaintiff's name on a contract for the purchase of lands. The contract was entered into April 24, 1875, and purports to be between Jesse C. Widoe as vendor and Henry Armitage as vendee. The purchase price was thirteen thousand dollars, of which three thousand dollars was payable on or before May 10, 1875, and the balance in ten annual installments of one thousand dollars each, with annual interest. Henry Armitage was about seventeen years of age at the date of the contract, and his name was signed to it by William H. Armitage, his father. The plaintiff, by his own evidence showed that he was ignorant of the contract at the time it was made, and never saw it until after this suit was brought; that he had no money to pay upon it and did pay none; and that his father told him what had been paid on the contract was to be recovered back in his, the son's name. The father was sworn as a witness, and testified that he made the contract and paid the money for his son, and that the son afterwards, on being informed of it, assented to what had been done. There is some complaint of refusal or unwillingness on the part of the defendant to perform the contract on his part, and on the contrary he relies upon it as a valid contract, and offers to perform, but the suit appears to be grounded upon the right of an infant to disaffirm his contract and recover back...