Clemons v. Olsh1ne

• Decision Date: 26 September 1936
• Docket Number: No. 25540.,25540.
• Citation: 54 Ga.App. 290,187 S.E. 711
• Parties: CLEMONS. v. OLSH1NE.
• Court: Georgia Court of Appeals

54 Ga.App. 290

187 S.E. 711

CLEMONS.

v.OLSH1NE.

No. 25540.

Court of Appeals of Georgia, Division No. 2.

Sept. 26, 1936.

Syllabus by the Court.

1. The court properly allowed the plaintiffs to amend the petition by alleging that the trade-name in which name the action was brought was a partnership composed of themselves.

2. An infant of the age of eighteen years, having reached an age of discretion when a fraudulent intent can be reasonably imputed to him, is legally chargeable with an estoppel in puis, such as a fraudulent misrepresentation, made to obtain goods on credit, that he is twenty-one years of age. Therefore, where such an infant obtains from a merchant clothing on credit on the faith of such a false representation, and consumes or uses it to the injury of the creditor, the infant, in an action on open account against him, will be estopped from setting up his infancy as a defense. Unless the youthful appearance of the infant purchaser or other fact or circumstances appear, such as would reasonably tend to cast doubt or suspicion on the truthfulness of his representation as to his majority, it is unnecessary for the creditor to make an independent investigation thereof.

Error from Municipal Court of Atlanta, Appellate Division.

Action by A. and H. Olshine against J. W. Clemons. To review a judgment of the Appellate Division, affirming a judgment for the plaintiff, the defendant brings error.

Judgment of Appellate Division affirmed.

"Olshine Company" sued the defendant on open account for a balance due on the purchase price of a suit of clothes and a pair of shoes. The defendant pleaded that he was a minor, living with his father; that the father had always furnished him with necessaries; and that he tendered the clothes back to the plaintiff. Exception is taken to the allowance of an amendment filed by the plaintiff, pleading that "Olshine Company" was a partnership composed of two named persons; and that the defendant, at the time when he made the contract for the merchandise, represented to the plaintiffs that he was more than twenty-one years old. The bill of particulars showed that, since the purchase in October, 1934, to the time of the suit in August, 1935, the defendant had made twelve payments. The testimony of the defendant and his father was that he was nineteen years old at the time of the trial in September, 1935, and eighteen when be bought the goods; that when he bought the suit and found that it did not fit, he returned it to the plaintiffs; that after making alterations, they sent it back to him; that he tendered it back to their collector the following week; that the suit had been dry-cleaned several times, and eight laundry marks were visible on the suit; that he would pay for it if it would fit; that the defendant turned his wages over to his father, who used them and his own wages to purchase necessaries, including clothing, for the defendant and the rest of the family. The plaintiffs introduced the written contract containing a representation by the defendant that he was twenty-one years old, and another contract in which the agreed amount had been paid by the defendant. A witness for the plaintiffs testified that the defendant represented to her, when he bought the goods, that he was twenty-one years old; that credit was extended to him upon this representation; but that the plain-tiffs had not investigated as to its truth, and had not obtained the father's consent to the sale to the defendant. There was no testimony indicating that the plaintiffs had any information or data, from the appearance of the defendant or otherwise, that his written and oral representation was untrue; or that the suit was tendered to the plaintiffs at the time of the trial; or that the shoes had ever been tendered back to them at any time. The judge of the municipal court, without a jury, found for the plaintiffs, and denied the defendant's motion for a new trial. The Appellate Division affirmed the judgment, and the defendant excepted.

Joe Hill Smith, of Atlanta, for plaintiff in error.

W. T. Woolf and W. A. McClain, both of Atlanta, for defendant in error.

JENKINS, Presiding Judge (after stating the facts as above).

1. Where a petition is brought in a name or names which import a corporation or partnership, and not an artificial name which imports neither, it is amendable so as to allege the true nature of the plaintiff or plaintiffs. Western & Atlantic R. Co. v. Dalton Marble Works, 122 Ga. 774, 50 S.E. 978; Perkins Co. v. Shew-make & Murphey, 119 Ga. 617, 46 S.E. 832; Free Gift Society Number 25 v. Edwards, 163 Ga. 857 (4), 866, 137 S.E. 382; Town of East Rome v. Rome, 129 Ga. 290 (3, 4), 58 S.E. 854; Wilson v. Sprague Mowing Machine Co., 55 Ga. 672, 673, 674; Saint Cecilia's Academy v. Hardin, 78 Ga. 39, 41, 3 S.E. 305; Dunn & McCarthy, Inc., v. Pinkston, 47 Ga.App. 514 (2), 170 S.E. 922; Stephens v. Bibb Investment Co. (Ga.App.) 187 S.E. 709. Therefore the court did not err in allowing the amendment, setting forth that "Olshine Company, " in whose name the suit was brought, constituted a partnership composed of two named partners.

2. "While the contract of an infant is declared by the Code [Civ.Code 1910, § 4233; Code 1933, § 20-201] to be 'void except for necessaries, ' it is the well-settled rule that such a contract is 'not void, but voidable, at the election of the infant, when arriving at full age.'" "A defendant is estopped from exercising his privilege of avoiding a fair and reasonable contract upon the ground of his minority at the time the agreement was made, where it appears that he has re ceived, enjoyed, and consumed its irrestorable benefits, and, where it appears that the plaintiff, dealing in good faith, was induced to act to his injury by reason of the false and fraudulent representation of the defendant with respect to his apparent majority, and that, in view of all the surrounding facts and circumstances, the plaintiffs was justified in accepting such representation as true, and was free from fault or negligence on his own part, such as a failure to use all ready means of ascertaining the truth touching the defendant's apparent majority." Hood v. Duren, 33 Ga.App. 203, 125 S.E. 787. It would be manifest that the decision in the Hood Case would control the case here presented, as to the liability of the infant defendant, since it was shown that the...