Creer v. Active Auto. Exch., Inc.

CourtConnecticut Supreme Court
Writing for the CourtKEELER, J. (after stating the facts as above).
Citation99 Conn. 266,121 A. 888
Decision Date27 July 1923
PartiesCREER v. ACTIVE AUTOMOBILE EXCH., INC.

121 A. 888

99 Conn. 266

CREER
v.
ACTIVE AUTOMOBILE EXCH., INC.

Supreme Court of Errors of Connecticut.

July 27, 1923


Appeal from District Court of Waterbury; Frederick M. Peasley, Judge.

Action by Walter N. Creer against the Active Automobile Exchange, Inc., for money had and received by defendant and for the cancellation of certain notes. Judgment for the plaintiff, and defendant appeals. Error and new trial ordered.

This was an action brought by an infant by next friend, to recover damages from defendant by reason of the latter retaining an automobile and certain cash, delivered to it by plaintiff upon a contract for the purchase of an automobile, which contract afterward the plaintiff sought to rescind. The first count of the complaint alleges the infancy of the plaintiff at the time the contract was made, October 30, 1920; that on that day the parties entered into an agreement whereby the defendant was to sell and the plaintiff purchase a Studebaker touring car for the sum of $728--$300 cash on delivery, and the [99 Conn. 268] balance of $428 in ten monthly payments of $42.80 per month, and that title to the car should remain in defendant until full payment was made; that the first payment was made on that day by the defendant accepting a Studebaker roadster valued at $250 in lieu of cash and a cash payment of $50, and at the same time plaintiff executed and delivered to the defendant ten notes of $42.80 each, of which the first note was payable November 1, 1920, and the others monthly thereafter for nine months; that on January 11, 1921, plaintiff elected to rescind the contract, and on that day returned the Studebaker touring car to defendant, which took the same into its possession; and that plaintiff had paid value to defendant to the amount of $342.80. Plaintiff claimed $500 damages, and the cancellation of the notes.

The complaint contained a second count, which was afterward superseded by an amended second count. Demurrers to both of these last counts were sustained, and they are not involved in this appeal. There was a demurrer to the first count, which was overruled, and the action of the court in this respect forms a ground of appeal. Defendant then filed an answer and seven special defenses, which latter were afterward consolidated into one amended first defense and one amended second defense; paragraphs 10, 11, 12, and 13 of this latter defense were expunged by order of court as evidential, and on this action of the court error was assigned. A reply and an amended reply was filed thereafter, denying its essential allegations, and in particular defendant's allegations that the contract was caused by plaintiff's fraud in misrepresenting his age. A counterclaim was filed by defendant in two counts, the first of which setting up plaintiff's fraud was abandoned at the trial, and the second which sets up the execution of a promissory note by plaintiff to [99 Conn. 269] defendant for $428, payable in ten equal installments of $42.80 each, beginning November 30, 1920, and alleging nonpayment of all but the first installment. Plaintiff answered this count of the counterclaim by admitting the execution of the note and denying the remainder of its allegations, except the payment of one installment. Upon all of the various allegations and denials above set forth the parties were at issue to the jury. Certain rulings by the court on evidence and portions of its charge to the jury are made grounds of appeal, which will be considered at large in the opinion following, which also contains further facts. [121 A. 889]

Carroll C. Hincks, William E. Thoms, and Arthur F. Ells, all of Waterbury, for appellant.

Michael V. Blansfield and Herman B. Engelman, both of Waterbury, for appellee.

KEELER, J. (after stating the facts as above).

By the first assignment of error the defendant claims that the allegation of the complaint as to the return of the Studebaker touring car is deficient and therefore insufficient, in that it fails to allege that the car when returned was substantially as valuable as when he received it. In Riley v. Mallory, 33 Conn. 201, wherein it is held that an infant may rescind all contracts executory or executed, subject to three exceptions, the opinion states that this privilege of an infant constitutes a rule of law with exceptions, and is not itself an exception to the general rule enforcing all contracts. The third of the three exceptions to the rule as stated in the case cited denies a recovery where the infant plaintiff seeks to rescind " executed contracts where he has enjoyed the benefit of them, and cannot restore the other party to his [99 Conn. 270] original condition." The plaintiff pleaded that he had returned the car. His prior allegations had pleaded its receipt by him; he had in the allegation under consideration stated the transaction as he claimed it to be. If defendant claimed that the return of the car did not restore him to his original position, that was a matter purely defensive, properly raised only in the answer, as was afterward done, and the point was thoroughly contested, forming the subject-matter of one of the interrogatories submitted to the jury upon a charge by the court which stated the question very fairly upon defendant's claim. None of the authorities cited by defendant to this point was in any way concerned with a question of pleading.

Defendant, in his ninth and eleventh reasons of appeal--one addressed to the refusal of the court to charge the jury, and the other to the charge on the subject as given--contends that the misrepresentation of plaintiff of his age at the time of making the contract was a sufficient defense against plaintiff's claim for rescission. The court charged that it was not a defense, and directed the jury to disregard it.

There is not full accord in all jurisdictions in the law upon this point, but the great weight of authority is in favor of the position taken by the trial court. Not all of the [121 A. 890] cases, however, cited by defendant sustain its contention, some of them are beside the question, in that they relate to representations in applications for insurance wherein falsity goes to the formation of the contract, and others relate to transactions in which the infant could not fully restore the other party to his original condition. The claim of the defendant as well as the reasoning of the cases the authority of which he invokes veers between fraud going to the formation of the contract and invalidating it, and an estoppel in pais.

[99 Conn. 271] Many of the cases supporting the claim of the plaintiff and the position of the trial court are leading and of paramount authority. We do not deem it necessary to give numerous citations, but will consider such of them as seems necessary in the following discussion. Most of them are cited in Watson v. Ruderman, 79 Conn. 687, 66 A. 515.

Shortly prior to his death in 1847, Chancellor Kent completed his work upon the sixth edition of his Commentaries, and the statements of law then found in his treatise are probably an adequate representation of the then existing American law on the subject now under discussion. He says (2 Kent Comm. 240):

" But there are many hard cases in which the infant cannot be held bound by his contracts, though made in fraud for infants would lose all protection if they were to be bound by their contracts made by improper artifices, in the heedlessness of youth, before they had learned the value of character and the just obligation of moral duties. When an infant had fraudulently represented himself to be of age when he gave a bond, it was held the bond was void at law."

And again at page 241 he proceeds:

" But the fraudulent act to charge him must be wholly tortious; and a matter arising ex contractu, though infected by fraud, cannot be changed to a tort in order to charge the infant in trover, or case, by a change in the form of the action."

This latter statement is made in connection with an action against the infant sounding in tort, the former with regard to an action ex contractu in which a minor defendant pleads infancy. The learned author cites in connection with the first of the above extracts the case of Burley v. Russell (1839) 10 N.H. 184, 34 Am.Dec. 146, which held that an infant maker and indorser of promissory notes, action upon which he defended by...

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22 practice notes
  • State v. McLucas
    • United States
    • Supreme Court of Connecticut
    • March 15, 1977
    ...refuse to permit the three witnesses to testify to Sams' reputation for veracity. See Creer v. [172 Conn. 563] Active Auto Exchange, Inc.,99 Conn. 266, 278, 121 A. 888; Holden and Daly, Connecticut Evidence § 125b(3); McCormick, Evidence (2d Ed.) § 44. The court realized its error and attem......
  • State v. Taylor
    • United States
    • Supreme Court of Connecticut
    • October 7, 1965
    ...without reference to the birth certificate by competent and adequate evidence Page 367 of his age. Creer v. Active Auto Exchange, Inc., 99 Conn. 266, 276, 121 A. 888. The birth certificate was merely corroborative of Arsenault's age, which, although his minority was an essential element of ......
  • Cicero v. E. B. K., Inc.
    • United States
    • Supreme Court of Connecticut
    • June 25, 1974
    ...stage in a trial to impeach the credibility of a witness is after that witness has testified. See Creer v. Active Auto Exchange, Inc., 99 Conn. 266, 278, 121 A. 888. Since the plaintiff had not yet testified at the time the question in issue was asked the trial court cannot be said to have ......
  • State ex rel. Lentine v. State Board of Health, No. 31168.
    • United States
    • United States State Supreme Court of Missouri
    • December 6, 1933
    ...Cox v. Strickland, 101 Ga. 482; Berneker v. State, 40 Neb. 810; Keith v. State, 152 S.W. 1029, 127 Tenn. 40; Greer v. Active, etc., 99 Conn. 266; Feibelman v. Fire Ins. Co., 108 Ala. 180; Glove v. State, 200 Ala. 384; Harrison v. Lakenan, 189 Mo. 601. (6) The law presumes that relator has a......
  • Request a trial to view additional results
22 cases
  • State v. McLucas
    • United States
    • Supreme Court of Connecticut
    • March 15, 1977
    ...refuse to permit the three witnesses to testify to Sams' reputation for veracity. See Creer v. [172 Conn. 563] Active Auto Exchange, Inc.,99 Conn. 266, 278, 121 A. 888; Holden and Daly, Connecticut Evidence § 125b(3); McCormick, Evidence (2d Ed.) § 44. The court realized its error and attem......
  • State v. Taylor
    • United States
    • Supreme Court of Connecticut
    • October 7, 1965
    ...without reference to the birth certificate by competent and adequate evidence Page 367 of his age. Creer v. Active Auto Exchange, Inc., 99 Conn. 266, 276, 121 A. 888. The birth certificate was merely corroborative of Arsenault's age, which, although his minority was an essential element of ......
  • Cicero v. E. B. K., Inc.
    • United States
    • Supreme Court of Connecticut
    • June 25, 1974
    ...stage in a trial to impeach the credibility of a witness is after that witness has testified. See Creer v. Active Auto Exchange, Inc., 99 Conn. 266, 278, 121 A. 888. Since the plaintiff had not yet testified at the time the question in issue was asked the trial court cannot be said to have ......
  • State ex rel. Lentine v. State Board of Health, No. 31168.
    • United States
    • United States State Supreme Court of Missouri
    • December 6, 1933
    ...Cox v. Strickland, 101 Ga. 482; Berneker v. State, 40 Neb. 810; Keith v. State, 152 S.W. 1029, 127 Tenn. 40; Greer v. Active, etc., 99 Conn. 266; Feibelman v. Fire Ins. Co., 108 Ala. 180; Glove v. State, 200 Ala. 384; Harrison v. Lakenan, 189 Mo. 601. (6) The law presumes that relator has a......
  • Request a trial to view additional results

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