Childs v. Dobbins

• Decision Date: 13 December 1880
• Citation: 7 N.W. 496,55 Iowa 205
• Parties: CHILDS v. DOBBINS
• Court: Iowa Supreme Court

7 N.W. 496

55 Iowa 205

CHILDS v. DOBBINS

Supreme Court of Iowa, Des Moines

December 13, 1880

Appeal from Montgomery District Court.

ON the 20th day of July, 1875, the plaintiff filed his petition, by his next friend, alleging, in substance, that on or about the 24th of March, 1875, being a minor, he entered into a parol contract with the defendant for the purchase of certain trees and shrubbery for the price of five hundred dollars, which he then paid; that the fact of plaintiff's minority was known to defendant; that on or about the 29th day of March 1875, the plaintiff disaffirmed the contract and tendered back to the defendant all the nursery stock delivered to him at the place and in the condition received by him. The action is brought to recover the consideration paid. A demurrer to the count of the petition alleging these facts was sustained. The plaintiff appeals.

REVERSED.

Hewitt & Richards, for the appellant.

Hepburn & Thummel and S. McPherson, for the appellee.

OPINION

DAY J.

The disaffirmance was made by the plaintiff during his minority. The only question presented by the appeal is whether the plaintiff could, under section 2238 of the Code, disaffirm the contract before attaining his majority. The rule of the common law upon this subject is that contracts which relate only to the person or to personal property may be avoided at any time. 1 Parsons on Contracts, 5th Ed., 322, and cases cited; Reeves' Domestic Relations, 3d Ed., pp. 344, 353, 366 and 381, and cases cited.

Section 2238 of the Code provides: "A minor is bound, not only by contracts for necessaries, but also by his other contracts, unless he disaffirms them within a reasonable time after he attains his majority, and restores to the other party all money or property received by him by virtue of the contract and remaining within his control at any time after attaining his majority." The purpose of this section is to fix the limit of the duration, and not to prescribe the time of the commencement, of the period within which a minor may disaffirm his contract. The period during which a disaffirmance may be made does not extend beyond a reasonable time after majority is attained. Before the lapse of a reasonable period after majority, the contract of a minor may be disaffirmed, whether the disaffirmance takes place before or after majority. This, we think, is the correct construction of the statute. The appellee...