Doenges-Long Motors, Inc. v. Gillen
| Decision Date | 18 August 1958 |
| Docket Number | DOENGES-LONG,No. 18250,18250 |
| Citation | 138 Colo. 31,328 P.2d 1077 |
| Parties | MOTORS, Inc., a Corporation, Plaintiff in Error, v. James M. GILLEN, Defendant in Error. |
| Court | Colorado Supreme Court |
Hunter D. Hardeman, Colorado Springs, for plaintiff in error.
Eugene O. Bird, Colorado Springs, for defendant in error.
The parties appear here in reverse order of their appearance in the trial court. We refer to the defendant in error as Gillen or the minor, and to the plaintiff in error as the Motor Company.
On December 21, 1955, Gillen, a minor of the age of twenty years, ten months, twenty-four days, purchased and received delivery from the Motor Company a new '56 Ford automobile at the agreed price of $2,852.98, which included sales tax. As a down payment thereon Gillen turned over to the Motor Company cash in the amount of $452.98 and a '49 Pontiac for which he was given credit of $500, leaving an unpaid balance of $1,900. For this unpaid balance Gillen gave his note for the amount of $2,621.40, secured by chattel mortgage on the Ford, payable in thirty equal monthly installments.
Promptly after reaching his majority, Gillen advised the Motor Company that he disaffirmed the contract. He returned the Ford and demanded the return of his down payment of $452.98 and the Pontiac. His demand was refused and shortly thereafter this action was brought by Gillen to recover back the Pontiac and $452.98, together with interest.
Gillen in his complaint alleged that the cash and Pontiac were surrendered to the Motor Company as a down payment on the purchase price of the 1956 Ford, that he was a minor at the time of the transaction and has disaffirmed the contract.
The Motor Company answered and set up several separate defenses, the substance thereof being that: (1) Gillen fraudulently misrepresented his age and, because of said fact, he is estopped to disaffirm his contract; (2) because of his fraudulent misrepresentations he is not entitled to disaffirm, and (3) if it be held Gillen is entitled to disaffirm, the Motor Company is entitled to recover damages in the amount of $664.78:
'said amount representing depreciation in value of said 1956 Ford automobile, repairs, commissions, and other expenses incurred by defendant when said automobile was returned.'
As proof of its claim for damages, the Motor Company offered evidence of the following items:
Resale of Ford
1. Difference between sales price of Ford
$2806.84 (not including sales tax) and price
on resale $2695.00 ............................ $111.84
2. Repairs on Ford prior to resale ................. 54.13
3. Salesman's commission on resale Ford ............ 90.00
4. Repairs on '51 Mercury taken in trade
on resale of Ford ............................... 21.48
5. Salesman's commission sale of '51
Mercury trade-in ................................ 24.75
6. Repairs on '46 Mercury taken in trade
on sale of '51 Mercury ........................... 8.28
7. Salesman's commission sale of '46
Mercury ......................................... 15.00
8. Salesmanager's commission on resale of
Ford, and sale of '51 Mercury and '46
Mercury ......................................... 25.95
9. Cost of finance pay-off ......................... 15.00
10. Salesman's commission original sale of
Ford ............................................ 70.00
Disposition of Pontiac
11. Difference between amount allowed for
Pontiac ($500.00) and amount received
from sale ($395.00) ............................ 105.00
12. Repairs on Pontiac ............................... 9.65
13. Salesman's commission on sale Pontiac ........... 19.75
14. Salesmanager's commission on sale
Pontiac .......................................... 3.95
Other Expenses
15. Use of Lot--trade-ins on lots 45 days at
$2.00 per day ................................... 90.00
-------
$664.78
The trial court apparently concluded that Gillen had the right to disaffirm the contract and thereupon was entitled to the return of the $452.98 paid, and $500 tradein allowance for the Pontiac, and this in spite of the fact that the Motor Company, according to the undisputed evidence, received net of only $361.65 from the sale of the Pontiac.
The trial court found that Gillen had misrepresented his age and, because thereof, the Motor Company was entitled to deduct from Gillen's demand the following:
Item 1 above ............................. $ 111.84
" 2 " ............................. 54.13
" 3 " ............................. 90.00
" 4 " ............................. 21.48
" 6 " ............................. 8.28
" 9 " ............................. 15.00
--------
$ 300.73
plus damages in the amount of $24.27 (there is nothing whatsoever in the record to sanction this item), making in all a total deduction of $325.
The trial court also found that even though plaintiff misrepresented his age, the Motor Company is not entitled to deduct from Gillen's demand the following:
Items 5-7-8 above .. $ 65.70
Item 10 .............. 70.00
Item 15 .............. 90.00
It made no mention of items 11, 12, 13 and 14, and entered judgment for plaintiff in the amount of $627.90. The net result was to allow Gillen $500.00 for his Pontiac; his cash payment of $452.98--total $952.98--and to deduct therefrom $325.00, leaving a balance of $627.98, for which amount judgment was entered.
The Motor Company is here by writ of error seeking reversal and dismissal of Gillen's complaint.
Some of the questions presented by the record here have not been passed upon by this court. Entrenched firmly in the law is the doctrine that an infant should be protected against contractual obligations incurred during his minority, it being a matter of public policy to protect minors from their possible improvident and imprudent contractual commitments.
We take the position that an infant lacks capacity (except for those contracts authorized by statute) to make a firm and binding contract; in all such contracts lies the inherent weakness and condition that the infant may disaffirm the contract during his minority or within a reasonable time after reaching his majority.
The record before us presents the question of the right to disaffirm and the rights and duties of the parties on disaffirmance.
Though the trial court did not expressly state that Gillen had the right to disaffirm his contract, the court proceeded on the theory that he did have such right. We expressly hold that a minor during his minority, and acting timely on reaching his majority, may disaffirm any contract that he may have entered into during his minority, and this is equally true whether he has or has not misrepresented his age and even though his misrepresentation of age induced the other party to enter into the contract. We are speaking now of disaffirmance, which is clearly distinguishable from a proceeding in equity seeking rescission.
On disaffirmance the contract is abrogated ab initio. In 43 C.J.S. Infants § 75, p. 176, it is said:
'The general rule, which has been said to have its exceptions and limitations, is that the disaffirmance of a contract made by an infant nullifies it and renders it void ab initio, and that the rights of the parties are to be determined as though the contract had not been made, the parties being restored to the status quo as far as possible * * *.'
The right of an infant to disaffirm a contract is an absolute right.
In Mosko v. Forsythe, 102 Colo. 115, 76 P.2d 1106, 1107, this court said:
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