Blake v. Harding
| Decision Date | 25 March 1919 |
| Docket Number | 3313 |
| Citation | 180 P. 172,54 Utah 158 |
| Court | Utah Supreme Court |
| Parties | BLAKE v. HARDING |
Appeal from the District Court of Salt Lake County, Third District Hon. R. B. Porter, Judge.
Action by Frank G. Blake, an infant, by T. W. Blake, his guardian ad litem, against C. D. Harding.
Verdict and judgment for defendant. Plaintiff appeals.
REVERSED and REMANDED, with directions to grant a new trial.
James D. Pardee of Salt Lake City, for appellant.
APPELLANT'S POINTS.
When it is said the infant cannot disaffirm if the contract was fair and reasonable at time of making is to assert that he can only disaffirm for fraud or mistake, which places him squarely on the plane of an adult, and deprives him of his privilege of infancy. Any person can rescind for fraud or mistake. MacGreal v. Taylor, 164 U.S. 688, 42 L.Ed 326.
On the disaffirmance of a contract the infant is not bound to place the other party in statu quo. Shipley v. Smith, 78 N.E. 803, 167 Ind. 526.
H. A Smith of Salt Lake City, for respondent.
Frank Blake, an infant, by T. W. Blake, his guardian ad litem, brought this action against the defendant to recover the value of a certain pony, harness, and buggy. Among other things, it is in substance alleged in the complaint that the plaintiff is an infant; that on a day named he and the defendant entered into an agreement whereby he agreed to sell and deliver to the defendant a certain pony, harness, and buggy at the agreed value of $ 150. for which defendant agreed to deliver to plaintiff 3,000 shares of the capital stock of the Deer Ridge Mining Company, of the agreed value of $ 150; that the said pony, harness, and buggy were duly delivered to and received by defendant and plaintiff duly received the 3,000 shares of stock; that the plaintiff is an infant and disaffirms said contract of sale or exchange as aforesaid and offers to return to the defendant said 3,000 shares of mining stock together with 3,000 shares of the stock of the Valley View Mining Company, which latter stock was received by plaintiff by reason of his ownership of said 3,000 shares of stock of the Deer Ridge Mining Company; that the plaintiff tendered to the defendant all of the stock aforesaid and demanded that the defendant return to plaintiff said pony, harness, and buggy or the value thereof, namely, the sum of $ 150; that the defendant sold said pony, harness, and buggy, and has placed it beyond his power to return the same to plaintiff, wherefore plaintiff prays judgment for the value thereof, to wit, the sum of $ 150, etc.
The defendant filed an answer to the complaint in which he in effect denied all of the allegations thereof. He also set up as a part of his answer an affirmative defense, which, however, in view of the assignments of error hereinafter referred to, it is not necessary to mention further.
The case was submitted to a jury, which, under the instructions of the court, returned a verdict in favor of the defendant. Judgment was entered on the verdict, and the plaintiff appeals.
The first assignment of error relates to the exclusion of certain evidence offered by the plaintiff. The defendant denied the value of the pony, harness, and buggy as alleged by the plaintiff, and there seems to have been considerable difference respecting their value between the plaintiff and the defendant. The plaintiff therefore, in connection with, and as a part of, the description, and as showing the condition of the pony, harness, and buggy, offered in evidence a photograph of the pony, harness, and buggy, offered in evidence a photograph of the pony, harness, and buggy showing the pony hitched to the buggy and taken, as we understand it, about the time the trade was made. It seems the photograph was properly identified, and the evidence showed that the photograph was a true picture and representation of the pony, harness, and buggy. We cannot see why the offered photograph does not come squarely within the rule laid down in the case of Dederichs v. Salt Lake City Rd. Co., 14 Utah 137, 46 P. 656, 35 L. R. A. 802. It is held in that case that photographs "are admissible as appropriate aids to the jury in applying evidence, whether it relates to persons, things, or places." In connection with his evidence relating to the value of the pony, harness, and buggy, the plaintiff certainly had the right to describe them and their condition fully and in detail. We cannot see why a photograph which is shown to be a correct representation of an object is not as proper as any other description would be. As a matter of course, before a photograph is admissible under the circumstances disclosed in this case, it must be made to appear that it is a true or correct picture or representation of the object photographed and in question. By that is not meant that it must be shown that the photograph is a true and correct picture or representation of the object photographed in the minutest details, but it must be made to appear that the photograph is a substantially true and correct picture or representation of the object, and not a distorted or false one. Of course, the photograph is not evidence of the value of the property, but it may aid the court or jury to better understand and appreciate the evidence relating to the value. We are of the opinion that the photograph should have been received in evidence for the purposes indicated above, and that the court erred in excluding it.
It is next insisted that the court erred in permitting the defendant to show the value of the Deer Ridge Mining Company's stock. The assignment is based upon the ground that, if the plaintiff had a right to disaffirm the sale or exchange of the property described in the complaint, the value of the stock which he offered to return to the defendant was wholly immaterial. We think the contention is sound. The plaintiff, being an infant, had the right to disaffirm the sale or exchange of the property, and therefore the value of the property he received and offered to return to the defendant was necessarily immaterial. We cannot see, however, how any prejudice resulted to the plaintiff by the court's ruling and therefore, if this were the only error, we should not feel disposed to reverse the judgment.
It is next assigned as error that the court erred in charging the jury. The court charged as follows:
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State v. Johnson
...generally admitted for the same reason that maps and diagrams in illustration or explanation of the testimony are admitted. Blake v. Harding, 54 Utah 158, 180 P. 172; Johnson v. [Union Pac.] Railroad Co., 35 Utah 285, 100 P. 390; State v. Casey, 213 P. 771 ; Tillman v. State, 112 Ark. 236, ......
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Richardson v. Missouri-K.-T. R. Co. of Texas
...The fact that the photograph is incorrect in some particulars does not render it inadmissible but affects its weight. Blake v. Harding, 54 Utah 158, 180 P. 172; 32 C.J.S., Evidence, § 715; 20 Amer.Jur. p. 613, sec. 734; Bilbrey v. Gentle, The appellant's theory advanced in point one, levele......
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State v. Tatum, 35383
...be helpful to the court and the jury. See Hassam v. J. E. Safford Lumber Co. and Safford, 1909, 82 Vt. 444, 74 A. 197; Blake v. Harding, 1919, 54 Utah 158, 180 P. 172. Witness Pentecost testified that she recognized the background shown in the picture as that of the food store, and, as ment......
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Brockman v. State, 33961
...it must be shown merely that the photographs are sufficiently correct to be helpful to the court and jury. * * * And in Blake v. Harding, 1919, 54 Utah 158, 180 P. 172 the court said: 'As a matter of course, before a photograph is admissible under the circumstances disclosed in this case, i......