Gonackey v. General Acc., Fire & Life Assur. Corp.

• Court: Georgia Court of Appeals
• Writing for the Court: HILL, C.J. (after stating the facts as above).
• Citation: Gonackey v. General Acc., Fire & Life Assur. Corp., 65 S.E. 53, 6 Ga.App. 381 (Ga. App. 1909)
• Decision Date: 29 June 1909
• Docket Number: 1,711.
• Parties: GONACKEY v. GENERAL ACCIDENT, FIRE & LIFE ASSUR. CORPORATION.

65 S.E. 53

6 Ga.App. 381

GONACKEY v. GENERAL ACCIDENT, FIRE & LIFE ASSUR. CORPORATION.

No. 1,711.

Court of Appeals of Georgia

June 29, 1909

Syllabus by the Court.

All contracts of an infant in relation to personal property whether executory or executed, may be disaffirmed by the infant during his minority, and for the purpose of enforcing such disaffirmance the infant can bring suit in law or equity by guardian or next friend.

Where an infant beneficiary under a policy of insurance has made a settlement with the company for less than the face value of the policy, he can nevertheless by next friend or guardian during his minority sue for the full amount of the policy and, if the amount paid to the infant by the company on the settlement has been spent or squandered by him, and he is not able to make restitution, the amount of the policy can be recovered without restitution. The doctrine that, in order to recover, a minor must first restore what he has received on the contract which he seeks to disaffirm, is applicable only to a case where he is able at the time of the disaffirmance to make restoration.

In a suit to recover money on an insurance policy, failure to incorporate in the petition or attach thereto as an exhibit "what appears upon the face or in the body of the policy," is an amendable defect, and should be taken advantage of by a special demurrer.

Error from City Court of Fitzgerald; D. B. Jay, Judge.

Action by E. B. Gonackey, by next friend, against the General Accident, Fire & Life Assurance Corporation. Judgment for defendant, and plaintiff brings error. Reversed.

O. H Elkins, for plaintiff in error.

Crum & Jones, for defendant in error.

HILL, C.J. (after stating the facts as above).

All contracts relating to personalty made by an infant can be avoided during minority as well as after the infant has attained majority, and this right applies to executed as well as to executory contracts. Harris v. Cannon, 6 Ga. 387; Smith v. Smith, 36 Ga. 189, 91 Am.Dec. 761; Nathans v. Arkwright, 66 Ga. 186; Clark on Contracts (2d Ed.) 164; 22 Cyc. 611. These authorities announce the rule that while a deed to land executed by an infant cannot be disaffirmed during his minority, although he may enter on the land and take the profits until the time arrives when he has the legal capacity to affirm or disaffirm, this rule does not apply to a contract relating to personalty, and that such a contract may be avoided by him while he is still an infant. Clark in his work on contracts, supra, states that the rule is general and almost universal that an infant may avoid any contract relating to his personal property before he becomes of age, and cites many authorities in support of this dictum. Probably the statement of the rule that an infant cannot disaffirm his deed to land is subject to the exception that if, in order to protect the infant in his rights, it should be necessary that the deed be avoided before his majority, it might be done by him suing by his guardian or next friend.

2. Following the weight of authority on this subject, it has been held by the Supreme Court that, while an infant should not be allowed to avoid his contract without making restitution of any money or property which he has received under the contract, yet he is not required to make restitution as a condition precedent to a disaffirmance unless, at the time of the disaffirmance, he has the fruits of the contract in his possession. If he cannot restore, he is not required to do so. This has been expressly ruled by this court in the case of Hughes v. Murphy, 5 Ga.App. 328, 63 S.E. 231, and by the Supreme Court in Shuford v. Alexander, 74 Ga. 295, and Southern Cotton Oil Co. v. Dukes, 121 Ga. 788, 49 S.E. 788. See, also, Clark on Contracts, p. 171; 22 Cyc. pp. 614, 616, 16 Amer. & Eng. Enc. of Law (2d Ed.) 293, and an elaborate note on the subject to the case of Englebert v. Troxell, 40 Neb. 195, 58 N.W. 852, 26 L.R.A. 177, 42 Am.St.Rep. 665. The cases of Strain v. Wright, 7 Ga. 568, Harris v. Collins, 75 Ga. 97, and Thomason v. Phillips, 73 Ga. 140, relied...