Commercial Credit Co. v. Ward & Son Auto Co.
| Decision Date | 17 June 1926 |
| Docket Number | 4 Div. 282 |
| Citation | 109 So. 574,215 Ala. 34 |
| Court | Alabama Supreme Court |
| Parties | COMMERCIAL CREDIT CO. v. WARD & SON AUTO CO. |
Certiorari to Court of Appeals.
Petition of the Commercial Credit Company for certiorari to the Court of Appeals to review and revise the judgment and decision of that court in Commercial Credit Co. v. Ward & Son Auto Co., 109 So. 576. Writ awarded.
London Yancey & Brower, Al G. Rives, and W.M. Windham, all of Birmingham, and W.W. Sanders, of Elba, for appellant.
J Morgan Prestwood, of Andalusia, for appellee.
This is an application for writ of certiorari to the court of appeals to review and revise its judgment and decision in a case in which the Commercial Credit Company was plaintiff, and Ward & Son Auto Company was the defendant.
The petition presents only one question. The trial court sustained demurrers to count 1 of the complaint; and this ruling was approved and affirmed by the court of appeals, and the correctness of that ruling is here for review.
The credit company by this count claims of the defendant, Ward & Son Auto Company, $250 damages for that one J.D. Stanley executed to the defendant a negotiable promissory note for $435.75, dated May 21, 1923, payable in monthly installments of $36.12 per month, beginning on May 21, 1923, and continuing each month for 12 months. He was a minor, under 21 years of age, at the time the note was executed by him, and was, therefore, without legal capacity to execute the note and bind himself thereby, and the defendant indorsed the note to plaintiff without recourse, and thereby warranted the legal capacity of J.D. Stanley to execute it, and Stanley has failed or refused to pay the note. These are the allegations of this count.
No objection can be taken or allowed to this count which is not distinctly stated in the demurrer. Section 9479, Code of 1923, and authorities there cited. This demurrer points out only one alleged defect in the count and that is, it fails to allege that Stanley, the maker of the note, had been sued on the note in a court of competent jurisdiction, that he pleaded his minority to the action on the note, and this defense was sustained by the court to the damage of plaintiff. The count may contain defects, but this alleged one is all that we have to consider.
The defendant, by indorsing this note without recourse for value and delivering it to the plaintiff, thereby warranted "that all prior parties had capacity to contract." The defendant thereby warranted that Stanley, the maker of it, had the capacity to contract, as evidenced by this note. Sections 9064, 9091, Code of 1923.
Did Stanley, the maker of this note, have capacity at the time to contract? That is the question presented. If Stanley did not have the capacity to contract when he executed the note, then the warranty was breached by the defendant, the payee, when he indorsed it, without recourse, for value, and delivered it to the plaintiff; and plaintiff could maintain this action. It affirmatively appears from this count, which is admitted by the demurrer, that Stanley, the maker of the note, was a minor, under 21 years of age when he executed it. So, has a minor the capacity to contract is the real question presented? An infant is not bound by his contract, except "for necessities, if equal and reasonable." Smoot v. Ryan, 187 Ala. 396, 65 So. 828.
There is nothing in this count showing the consideration was for reasonable necessities for the minor. A minor's contract generally is voidable and he may repudiate or avoid it, or he may ratify it after reaching majority. The minor is not bound by this contract to the other party to it, as he had no legal capacity while a minor to make it. Bell v Burkhalter, 176 Ala. 62, 57 So. 460. The statutes of this state provide under what circumstances, the mode, and the manner, a minor, over 18 years of age, may be relieved of his disabilities of nonage by the circuit court in equity,...
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Brasher v. First Nat. Bank
... ... Code 1923, § 9479; ... Commercial Credit Co. v. Ward & Son Auto Co., 215 ... Ala. 34, 109 So. 574; ... ...
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Kennedy v. Hudson
... ... are not governed by the commercial law, when the amount due ... exceeds $100, in order that the indorser or ... 474, 20 So. 595 ... And in ... Commercial Credit Co. v. Ward & Son Auto Co., 215 ... Ala. 34, 109 So. 574, the action was ... ...
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Williams v. Bolding
... ... Scales, ... 187 Ala. 25, 65 So. 393; Commercial Credit Co. v. Ward & ... Son, 215 Ala. 34, 109 So. 574. See, however, ... ...
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Wyatt v. State
...which appears on its face not to be binding, but which can be made so by contract or other circumstance. Cf. Commercial Credit Co. v. Ward & Son Auto Co., 215 Ala. 34, 109 So. 574; 23 Am.Jur. 687, § Of course, such liability of the endorser is only to his endorsee or to a subsequent holder.......