Barger v. M. & J. Finance Corp. Inc, 105.

• Decision Date: 04 March 1942
• Docket Number: No. 105.,105.
• Citation: 221 N.C. 64,18 S.E.2d 826
• Court: North Carolina Supreme Court
• Parties: BARGER . v. M. & J. FINANCE CORPORATION. Inc., et al.

18 S.E.2d 826

221 N.C. 64

BARGER .

v.M. & J. FINANCE CORPORATION. Inc., et al.

No. 105.

Supreme Court of North Carolina.

March 4, 1942.

Appeal from Superior Court, Buncombe County; Hubert E. Olive, Special Judge.

Action by Roy J. Barger against M. & J. Finance Corporation, Incorporated, and the Asheville Nash Company, to recover money paid on a contract during minority. Plaintiff took a voluntary nonsuit as to M. & J. Finance Corporation, Incorporated, and, from a judgment for plaintiff, the Asheville Nash Company appeals.

No error.

Civil action to recover for moneys paid on contract during minority.

The plaintiff, being a minor, entered into a contract in the Fall of 1939, for the purchase of a Graham-Paige automobile from the Asheville Nash Company, for the sum of $275, and on which car plaintiff paid the defendant Asheville Nash Company $38.45. On December 29, 1939, plaintiff traded the car to the above company for a Nash automobile. The plaintiff entered into a new contract and agreed to pay a difference of $257 for the Nash automobile. The paper was purchased by the M. & J. Finance Corporation, Inc., and plaintiff paid to that concern $116.50.

The plaintiff having become delinquent in his payments, the M. & J. Finance Cor poration, Inc., on October 14, 1940, instituted an action for the repossession of the Nash automobile and did repossess and retain the same. On October 21, 1940, the plaintiff, having attained the age of 21 years, instituted this action before a Justice of the Peace, in Buncombe County, to recover the full amount paid to both defendants. Judgment was entered for plaintiff and defendants appealed to the Superior Court of said County.

Pending the trial of this action the case of M. & J. Finance Corporation, Inc., v. Roy J. Barger, was tried and resulted in a verdict of $116.50 in favor of Roy J. Barger. The judgment was paid and the plaintiff herein took a voluntary nonsuit as to M. & J. Finance Corporation, Inc. At the trial of this cause the plaintiff reduced his claim to only $38.45, having received from the M. & J. Finance Corporation, Inc., all the consideration paid on both automobiles except this amount.

By consent the jury answered the issues as to the execution of the contract by the plaintiff and the minority of plaintiff at the time of the execution of the contract in the affirmative. It was stipulated by counsel and admitted in evidence that if defendant was indebted to plaintiff in any sum it should be $38.45, and on an appropriate issue the jury returned a verdict in favor of plaintiff for that amount.

From the judgment entered on the issues the defendant appeals to the Supreme Court and assigns error.

Cecil C. Jackson, of Asheville, for plaintiff.

Jordan & Horner, of Asheville, for defendant.

DENNY, Justice.

The exceptions pertinent to this appeal all relate to the refusal of the Court to permit the introduction of evidence tending to show that the automobile purchased by the plaintiff was a necessary for him in his work and to earn a livelihood; and to the refusal of the Court to submit to the jury the following issue: "Was the automobile a necessary for the plaintiff to enable him to hold his position and earn a livelihood?"

The general rule, and one consistently followed by this Court, is that a minor may elect to disaffirm a contract, relative to the sale or purchase of personal property, other than one authorized by statute or for necessaries. Chandler v. Jones, 172 N.C. 569, 90 S.E. 580; Greensboro Morris Plan Co. v. Palmer, 185 N.C. 109, 116 S.E. 261; Collins v. Norfleet-Baggs, 197 N.C. 659, 150 S.E. 177; General Motors Acceptance Corp. v. Edwards, 213 N.C. 736, 197 S.E. 613, 116 A.L.R. 1217.

In the case of Chandler v. Jones, supra, the Court said, at page 572 of...