Bailey v. Barnberger
| Decision Date | 02 January 1850 |
| Citation | 50 Ky. 113 |
| Parties | Bailey v. Barnberger. |
| Court | Kentucky Court of Appeals |
Infants and Infancy.
APPEAL FROM THE JEFFERSON CIRCUIT.
Harlan, Callender, and Williams, for appellant.
Pilcher & Hauser, and Spear, for appellee.
The case stated??
THE plaintiff had obtained from the proper department a warrant for one hundred and sixty acres of land, for his services in the United States army in the late war with Mexico. The defendant being in possession of this warrant, the plaintiff instituted this action of trover to recover its value. The proof in the case shows that on the 14th September, 1849, the plaintiff and Wigginton visited the defendant's store and proposed to sell the warrant to the defendant, who after some chaffering as to its value bought it. He paid the plaintiff $20 in cash, and the plaintiff and Wigginton selected out of defendant's store $100 worth of goods at fair prices. The goods were taken by Wigginton who gave his note to plaintiff for the one hundred dollars, and (as plaintiff stated to a witness) was to give his note with security for the money. He gave his note without security, and shortly afterward failed. At the time of this transaction, and at the commencement of this action, the plaintiff was past twenty but not quite twenty-one years of age, but had the appearance of being a man of mature age. He had for some time before the sale of his warrant been permitted by his father to work for himself and receive the pay. His father states that he had forbidden him to sell his land warrant. Upon demand made by one--as the agent of plaintiff, the defendant said he would deliver the warrant on condition of being repaid the amount which he had paid for it. This was not done, and this action was brought on the 23d October, 1849. The jury under the instructions of the Court rendered a verdict for defendant, the Court gave judgment and refused a new trial. From this judgment the plaintiff has appealed.
The first question to be decided, is whether the plaintiff can maintain his suit before he arrives to the age of twenty-one years. The contract is not void, but is only voidable.
Without stopping to cite the various authorities upon this subject we content ourselves by saying that it is now the well settled doctrine that an infant as to his executed and voidable contracts for personal property may during his infancy exercise the power of recession. We are next to inquire whether he can avoid his contract without returning or offering to return the money received by him, and the goods delivered to Wigginton, or if not the latter, then the note executed to him by Wigginton, or some equivalent therefor.
An infant, as to his executed and voidable contracts for personal property, may during his infancy exercise the power...
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