Bloomer v. Nolan

• Decision Date: 03 January 1893
• Citation: 36 Neb. 51,53 N.W. 1039
• Parties: BLOOMER v. NOLAN ET AL.
• Court: Nebraska Supreme Court

36 Neb. 51

53 N.W. 1039

BLOOMER

v.NOLAN ET AL.

Supreme Court of Nebraska.

Jan. 3, 1893.

Syllabus by the Court.

1. One who seeks to disaffirm a contract on the ground that he was an infant at the time of its execution is required to return so much of the consideration received by him as remains in his possession at the time of such election, but is not required to return an equivalent for such part thereof as may have been disposed of by him during his minority.

2. The property of an infant is not subject to a mechanic's lien for material purchased by him during his infancy, nor will he be held to have ratified the contract so as to entitle the material man to a lien thereon by retaining the property after he attains his majority.

3. Evidence examined, and held not sufficient to sustain the decree of the district court allowing a mechanic's lien in favor of the plaintiff.

Appeal from district court, York county; SMITH, Judge.

Action by Andrew F. Bloomer against Lucien C. Nolan and others to foreclose a mechanic's lien. From a decree sustaining the lien, defendants appeal. Reversed.Sedgwick & Power, for appellants.

George B. France, for appellee.

POST, J.

This was an action in the district court of York county to foreclose a mechanic's lien. Decree was entered in favor of the plaintiff in accordance with the prayer of his petition, from which the defendants have appealed. In his petition the plaintiff alleges that on or about the 18th day of August, 1886, he entered into a verbal contract with the defendants, by virtue of which he was to furnish them building material for the erection of a dwelling house upon premises owned by them, to wit, a quarter section of land in said county; and that in pursuance of said contract he furnished to defendants, between the date last named and the 17th day of September, 1886, building material to the amount and of the value of $224.98. It also appears from the petition that an itemized statement of the account, duly verified, was filed with the county clerk within four months from the time of the furnishing of said material. The defendants filed separate answers, that of Moshier being a general denial; while Nolan, in addition to a general denial, alleges that at and during all the times mentioned in the petition he was a minor, under 21 years of age. The reply of the answer of Nolan is a general denial. The ground of the judgment against the last-named defendant is not clear from the record. It is true that he purchased the material, as alleged by the plaintiff, but it is clear from the undisputed evidence that he was at the time a minor, but 19 years of age. There is no foundation for the contention that he has ratified the contract since attaining his majority-- First, because that question is not put in issue by the pleadings; and, second, because there is no sufficient evidence to support such a contention. There is no evidence whatever of any express ratification; neither will a ratification be inferred from the retention of the property by him. The rule is well settled that one who seeks to avoid a contract on the ground of infancy will be required to make restitution of so much of the consideration only as is retained by him when he attains his majority, or when he elects to disaffirm. Green v. Green, 69 N. Y. 553;Jenkins v. Jenkins, 12 Iowa, 195; Burgett v. Barrick, 25 Kan. 526; Bartlett v. Drake, 100 Mass. 174;Reynolds v. McCurry, 100 Ill. 356;Craig v. Van Bebber, 100 Mo. 584, 13 S. W. Rep. 906;Price v. Furman, 27 Vt. 268; Tyler, Inf. (2d Ed.) 37. The law which is designed to protect the young and inexperienced would be ineffectual for that purpose if an infant was required, as a condition to relief, to return an equivalent for property wasted or squandered. It is clear also from the evidence in the record that Nolan had no interest in the property at the time he attained his majority, and was incapable of making restitution. But the rule which requires restitution has no application to cases like the one under consideration. “There can be no mechanic's lien upon the land of a minor, for he can make no contract which is binding upon himself or his property. The lien is incident only to a legal liability to pay a debt. It is immaterial that the minor represented himself to be of age. Even if there be a contract for erecting buildings upon a minor's property with his guardian, no lien...