Baker v. Kennett
| Decision Date | 31 October 1873 |
| Parties | LEAKEN D. BAKER, Respondent, v. PRESS. G. KENNETT, Appellant. |
| Court | Missouri Supreme Court |
Appeal from Jefferson Circuit Court.
John L. Thomas and Bro., for Appellant.
I. A rash, improvident and hard bargain made by an infant with an adult, who has knowledge of his infancy, without an adequate consideration, is clearly and utterly void and will be so declared by a court of equity.
Those contracts of infants are void which the courts can declare to be to their prejudice. This prejudice to the infant may appear either from the papers or from the transaction, viewed in the light of surrounding circumstances. And such a bargain cannot be ratified by the infant on his attaining majority. (1 Sto. Eq., § 241; Chamb Inf., 450; Tyler Inf., 42; 25 Iowa, 95; Shackelford vs. Smith 5 Dana, 232.)
The contract in this case was by the infant disaffirmed before his attaining his majority, and stood as if no such contract ever existed. Hence it could not be affirmed afterwards. (Derocher vs. Con. Mills, 58 Me., 217; Vent vs. Osgood, 19 Pick., 572; Robinson vs. Weeks, 56 Me., 102.)
Before the ratification of a contract made by an infant can bind him, it must be re-affirmed by him, after his attaining his majority, with a full knowledge that he is not bound without a new promise.
Thos. C. Fletcher, and Reynolds & Relfe, for Appellant.
I. The offer by the infant, before attaining his majority, to re-convey the premises for the purchase money, for which the note in suit was given, the renewal of that offer, accompanied by his abandonment of the premises a few days after attaining his majority, and the tender of a bonus of two thousand dollars to be let off from his bargain, are conclusive proofs of disaffirmance on his part, and worked a complete discharge at least as to time. His acts after coming of full age are only explicable upon the supposition that he intended to abandon his contract.
II. Being discharged from the debt by the abandonment of the contract, no subsequent acknowledgment of that debt, however explicit, would give any right of action against him. (Dupuy vs. Swart, 3 Wend., 135; Bell vs. Morrison, 1 Pet., 371; Edgerton vs. Wolf, 6 Gray, 453; Heath vs. West, 28 N. H., 101; Vent vs. Osgood, 19 Pick., 572; Robinson vs. Weeks, 56 Me., 102; Derocher vs. Continental Mills, 58 Me., 217.)
III. The letters written by Cline, Jamison & Day, to Press. Kennett, were written with the intention of entrapping him into a recognition of the debt; and his answers to them were written under a mistake as to the ownership of the note, and as to the fact, that, without a new promise from him, he and his sureties were discharged. If one freely and deliberately, and upon full information, confirms the precedent contract, courts of equity will generally hold him bound thereby; but if he is still acting under the pressure of the original transaction; or if he is still under the influence of the delusive opinion that it is valid and binding upon him, then, and under such circumstances, courts of equity will hold him not barred from relief, by any such confirmation. The promise must be made voluntarily, freely, and with full knowledge that otherwise he would not be liable; that, without it, he was by law discharged. The only authority against this position that we are aware of, is that of Morse vs. Wheeler, 4 Allen, 570, cited by the Judge, who delivered the opinion in that case, in his own treatise on Contracts (see Metc. Cont., 59); so that we respectfully suggest, that the learned jurist and writer stands alone against the formidable array we have cited above. Hence we contend, that even if our secured proposition is not well taken, viz: that having been discharged from the debt, no subsequent acknowledgment would revive it, yet it is clear that the promise contained in the letters to the attorneys for plaintiff does not bind the infant, as it was obtained by fraud and misrepresentation, and made in ignorance of the fact, that, without it, he was discharged.
IV. The legal proposition contained in Schouler Dom. Rel. 535, so strongly relied on by the plaintiff in the lower court, “that infancy does not protect the indorsers or sureties of an infant, or those who have jointly entered into his voidable undertakings; that they, if of full age, may be made liable though the infant himself escapes responsibility,” does not apply to this case. An examination of every case cited by Schouler will show, that they are cases where the sureties claimed a discharge by the mere fact of the infancy of the principal. In the case at bar, the sureties claim a discharge on the ground that the infant having disaffirmed the contract, there was a total failure of the entire consideration, and that on that ground they are released. Here is a case of subsequent failure of the consideration, which is equally fatal with an original want of consideration.
Cline, Jamison & Day, with Abner Green, for Respondent.
I. Infancy does not protect the indorsers or sureties of an infant or those who have jointly entered into his voidable undertakings. They, if of full age, may be made liable though the infant escapes responsibility.
II. The letter written to the attorneys of the plaintiff by Kennett after he became of age was as follows:
“February 1, 1873.
Cline, Jamison & Day, Attorneys at Law.
Gentlemen--I received yours of previous date only day before yesterday, in which you want me to pay two thousand dollars on note held by you against me. Now, gentlemen, there is no one more anxious to pay a note than myself; but my total inability to do so at present is apparent to me, whether it may be to Mr. L. D. Baker or not. I have property which I am trying to sell, and as soon as I can I intend to settle my notes. If I can find a purchaser for the farm (which I gave Mr. Baker my note for) I can then pay him amount of note. Until then I have no money. I have property, but no money at present. If I ever sell my mining lands I will pay L. D. Baker, but can't possibly do so at this time.
| Very Respt., |
PRESS. G. KENNETT.”
Kennett testified at the trial, that he had sold his mining lands; and the language of the letter shows, that he still held the farm as his own, and that he knew that plaintiff was still the owner of the note. And these facts make a complete ratification of the contract. (Bing. Inf. 69 and n.; Highley vs. Barron, 49 Mo., 103; Boyden vs. Boyden, 9 Metc., 519; Lawson vs. Lovejoy, 8 Maine, 405; Robbins vs. Eaton, 10 N. H., 562; Holmes vs. Blogg, 8 Taunt., 39; Hubbard vs. Cummings, 1 Maine, 11; Whitney vs. Dutch, 14 Mass., 460; Ferguson vs. Bell's Admr., 17 Mo., 347; Harris vs. Wall, 1 Exch., 128; Martin vs. Mayo, 10 Mass., 137; Bobo vs. Hansell, 2 Bailey, 114.)
III. A ratification by a person of his contract made during infancy is good, even though he is ignorant of the fact that he is not legally liable. (Metc. Cont. 59; Morse vs. Wheeler, 4 Allen, [Mass.,] 570.) And though Parsons on Contracts [vol. 1, page 323,] speaks of a contrary doctrine, it will be seen that he does not refer to the case of Morse vs. Wheeler, but cites two cases in that State, both of which had been expressly overruled by the case of Morse vs. Wheeler.
This was an action on a promissory note executed by the defendant on the 1st day of May, 1872, in favor of the plaintiff for the sum of eight thousand dollars.
The record discloses these facts: That at the time the note was made and executed, the plaintiff was the owner of a tract of land in Jefferson county, and that the defendant, Press. G. Kennett, then a minor under the age of twenty-one, was desirous of purchasing the same. The parties finally came to an agreement, and the price was fixed at eight thousand dollars; plaintiff making to the defendant, Kennett, a deed for premises, and he executing the note sued on, due and payable seven months after date, with ten per cent. interest from the date thereof, with his mother and sister signing the note as his sureties. The evidence clearly shows, that the land was not worth the sum agreed to be paid for it. Kennett took possession of the same, making considerable improvements thereon, and on the 15th day of Sept. 1872, whilst he was still an infant, he went to the plaintiff and demanded back his note, offering to re-convey the land, and pay the interest due on the note. Shortly after his majority, he offered to pay two thousand dollars, and re-convey the property to plaintiff, and give him the improvements that he had put upon the premises, but this offer was refused. When Kennett made this last offer, plaintiff told him that Mr. Jamison had the note, and proposed that he should go to Jamison and pay the $2,000, and have it credited upon the note, but this proposition Kennett declined. Mr. Jamison is a lawyer, and a member of the firm of Cline, Jamison & Day, and there is a conflict of the testimony here between the plaintiff and defendant.
Kennett says, that at that time plaintiff told him that he had sold the note to Jamison, and that he was ignorant that Jamson was...
To continue reading
Request your trial
-
Phelps v. Heaton
...405; 2 Pomeroy, Eq. Jur. §§ 917, 965; Ketsey's Case, Cro. Jac. 320; Hubbard v. Cummings, 1 Me. 11; Bigelow v. Kinney, 3 Vt. 353; Baker v. Kennett, 54 Mo. 82; Roberts Wiggin, 1 N.H. 73; Boody v. McKenney, 23 Me. 517; Walsh v. Powers, 43 N.Y. 23; Callis v. Day, 38 Wis. 643; Kemp v. Cook, 18 M......
-
Hitch v. Stonebraker
... ... against him, yet this would be no defense for the surety ... Machine Co. v. Maxwell, 63 Mo. 486; Baker v ... Kennett, 54 Mo. 82. (5) The proceedings for the ... appointment of both trustees, Johnston and Hitch, were ... properly based on sections ... ...
-
Craig v. Van Bebber
...plaintiffs could recover, defendants were entitled to a return of the purchase money. This is the well-settled law of this state. Baker v. Kennett, 54 Mo. 82-88; Highley v. Barron, 49 Mo. 103; Kerr Bell, 44 Mo. 120. "There can be no right of recovery as long as any part of the consideration......
-
Orchard v. Wright-Dalton-Bell-Anchor Store Co.
...minor, it did obligate her, upon joining in the present suit, to tender back that sum, which the pleadings show was properly done. Baker v. Kennett, 54 Mo. 82. There could have been no ratification as far as plaintiff Orchard is concerned. He never received any of the proceeds of the void s......