Collins v. Norfleet-Baggs, Inc.
| Decision Date | 06 November 1929 |
| Docket Number | 369. |
| Citation | 150 S.E. 177,197 N.C. 659 |
| Parties | COLLINS v. NORFLEET-BAGGS, Inc. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Forsyth County; Walter E. Moore, Judge.
Action by Elbert E. Collins, by his general guardian, Ernest F Collins, against Norfleet-Baggs, Inc. Judgment for plaintiff and defendant appeals. New trial.
Infant is liable for tortious use or disposition of personalty after avoiding purchase or sale thereof and before its surrender.
Civil action to recover the value of a Chevrolet truck and the sum of $40.95.
On April 21, 1928, the plaintiff, being a minor, entered into a contract with the defendant, by the terms of which he traded a Chevrolet truck, valued at $250 for a Dodge sport roadster valued at $659.50, and executed note and mortgage on the Dodge roadster for the balance of $409.50. On May 21, 1928 the plaintiff made a payment of $40.95 on his note.
Thereafter the Dodge sport roadster was destroyed in a wreck; whereupon the plaintiff elected to disaffirm his contract, and now sues to recover $290.95, being the sum of the value placed upon the Chevrolet truck at the time of the trade, to wit, $250, and the payment of $40.95 subsequently made on the note.
The trial court instructed the jury that, if the plaintiff was a minor at the time of the trade, he would be entitled to recover $290.95 with interest from September 22, 1928. Exception by defendant.
The jury found that the plaintiff was a minor, and answered the issue of indebtedness in accordance with the above instruction.
From the judgment entered thereon, the defendant appeals, assigning errors.
Geo. R. Holton and W. Reade Johnson, both of Winston-Salem, for plaintiff.
Ratcliff, Hudson & Ferrell, of Winston-Salem, for defendant.
When an infant elects to disaffirm a contract, relative to the sale or purchase of personal property, other than one authorized by statute or for necessaries, what are the rights of the parties?
1. An infant may avoid such a contract, either during his minority or upon arrival at full age. Pippen v. Ins. Co., 130 N.C. 23, 40 S.E. 822, 57 L. R. A. 505.
2. Upon such avoidance, the infant may recover the consideration paid by him, either in money or property, with the limitation that he must restore whatever part of that which came to him under the contract he still has, or account for so much of its value as may have been invested in other property which he has in hand or owns and controls. Hight v. Harris, 188 N.C. 328, 124 S.E. 623; Millsaps v. Estes, 137 N.C. 536, 50 S.E. 227, 70 L. R. A. 170, 107 Am. St. Rep. 496; 14 R. C. L. 238.
3. But the infant is not required to account for the use or depreciation of the property while in his possession, or for its loss, if squandered or destroyed, for this is the very improvidence against which the law seeks to protect him ( Utterstorm v. Kidder, 124 Me. 10, 124 A. 725), with the exception, perhaps, that he might be required to account for any...
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