Grissom v. Beidleman

• Decision Date: 31 December 1912
• Citation: 129 P. 853,35 Okla. 343
• Parties: GRISSOM ET AL. v. BEIDLEMAN ET AL.
• Court: Oklahoma Supreme Court

129 P. 853

35 Okla. 343

GRISSOM ET AL. v. BEIDLEMAN ET AL.

Supreme Court of Oklahoma

December 31, 1912

Rehearing Denied Jan. 28, 1913.

Syllabus by the Court.

Where suit was brought in the name of a minor, who was under the age of 18 years, by direction of her next friend, to protect the infant's title to certain real estate, held, that the counsel could not recover in an action at law against the minor for services in such suit.

(a) Such services are not regarded as necessaries, and may be avoided by the infant, even under express promise.

The disaffirmance of a contract made by an infant nullifies it and renders it void ab initio; and the parties are returned to the same condition as if the contract had never been made.

(a) After the infant has disaffirmed the contract, any one may take advantage of such disaffirmance.

An infant may avoid his act or contract by different means according to the nature of the act and the circumstances of the case.

(a) Any act showing unequivocally a renunciation of, or a disposition not to abide by the contract made during minority is sufficient to avoid it.

Upon a petition in error to reverse a judgment by default, such defects in the petition as could have been taken advantage of under general demurrer may be brought under review; and, if the allegations of the petition are insufficient to sustain the judgment, the same will be reversed.

(a) Where an error is apparent on the judgment roll or record of the trial court, the same will be considered on review here although no exception was taken thereto.

Error from District Court, Okmulgee County; Wade S. Stanfield Judge.

Action by George C. Beidleman and others against Joseph M. Grissom and others. Judgment for plaintiffs, and defendants bring error. Reversed and remanded.

George James, of Okmulgee, for plaintiff in error Grissom.

A. S. McRea, of Okmulgee, for plaintiff in error Green.

Merwine & Newhouse and George C. Beidleman, all of Okmulgee, for defendants in error.

WILLIAMS J.

The only question to be determined in this proceeding is whether the contract entered into, on which the action was based, to wit, that between Leah Gresham, a minor, under 18 years of age, by Vassie Gresham, as next friend, and George C. Beidleman, an attorney, in which the latter was employed as attorney to prosecute an action in her name by said next friend to recover her interest in certain lands, was voidable. "A minor cannot give a delegation of power, nor under the age of eighteen, make a contract relating to real property, or any interest therein, or relating to any personal property not in his immediate possession or control." Section 5035, Comp. Laws of Okl. 1909; section 3912, Wilson's Rev. & Anno. Stat. 1903. A minor may make any other contract, with certain exceptions; the exception including section 5035, supra, subject only to his power of disaffirmance, and subject to the provisions of the law on marriage and on master and servant. Section 5036, Comp. Laws of Okla. 1909; section 3913, Wilson's Rev. & Anno. Stat. 1903. "A minor cannot disaffirm a contract, otherwise valid, to pay the reasonable value of things necessary for his support, or that of his family, entered into by him when not under the care of a parent or guardian able to provide for him or them." Section 5038, Comp. Laws of Okla. 1909; section 3915, Wilson's Rev. & Anno. Stat. 1903. "A minor cannot disaffirm an obligation, otherwise valid, entered into by him under the express authority or direction of a statute." Section 5039, Comp. Laws of Okl. 1909; section 3916, Wilson's Rev. & Anno. Stat. 1903.

In all cases other than those specified in said sections 3915 and 3916, Wilson's Rev. & Anno. Stat. 1903 (sections 5038 and 5039, Comp. Laws of Okla. 1909) the contract of a minor, made by him whilst he is under the age of 18, may be disaffirmed by the minor himself, either before his majority or within one year's time afterwards, or in case of his death, by his heirs or personal representative; and if the contract be made by the minor while he is over the age of 18 years, it may be disaffirmed in law only upon restoring the consideration to the party from whom it was received, or paying its equivalent, with interest. Section 5037, Comp. Laws of Okla. 1909; section 3914, Wilson's Rev. & Anno. Stat. 1903. See Crafts v. Carr, 24 R.I. 397, 53 A. 275, 60 L. R. A. 128, 96 Am. St. Rep. 721; Hall v. Butterfield, 59 N.H. 354, 47 Am. Rep. 209; International Land Co. v. Marshall, 22 Okl. 693, 98 P. 951, 19 L. R. A. (N. S.) 1056.

The English law, from the earliest period, has thrown the mantle of protection around the minor or infant on account of his ignorance and inexperience. International Land Co. v. Marshall, supra. The federal government, in exercising its guardianship over the Indians as its wards, carrying out this same policy, has put certain limitations upon this state as to the lands of said wards. Jefferson v. Winkler, 26 Okl. 653, 110 P. 755; Bell v. Cook (C. C.) 192 F. 597; Truskett et al. v. Closser (C. C. A.) 198 F. 835.

In N.H. Mutual Fire Ins. Co. v. Noyes, 32 N.H. 345, it is said: "In Phelps v. Worcester, 11 N.H. 51, it was holden that the services and expenses of counsel, in carrying on a suit to protect the infant's title to his estate, could not be regarded as necessaries, and that the infant's liability for them might be avoided, even under an express promise to pay for them. Upham, J., in pronouncing the opinion of the court, remarked: 'The inquiry has been made, if there had been no guardian, and the infant were without aid, whether he might not employ others to protect his rights to his property, and be legally holden, notwithstanding the interposition of his minority. We think clearly not. Though such services may promote the sound interests of the ward (infant?), they are not of such assistance as comes within the term "necessaries." Lord Coke considers the necessaries of the infant to include victuals, clothing, medical aid, and good teaching or instruction whereby he may profit himself afterwards. Coke Lit. 172a. Such aid concerns the person and not the estate, and we know of no authority which goes beyond this.' Now, if the services and expenses of counsel, in protecting the property of an infant, are not necessaries, on what principle can it be contended that the insurance of that property against loss by fire can be? The object is the same in both cases--the protection and security of the infant's property--and instances can readily be conceived where the services of learned and experienced counsel might be quite as valuable and important as any contract of insurance. The test of beneficiality, then, cannot be relied on as determining whether or not a thing is to be reckoned among necessaries. But it seems to us the suggestion in the case last cited, that necessaries concern the person and not the estate, furnishes the true test on this subject. Although there may be isolated cases where a contrary doctrine has obtained, we apprehend the true rule to be that those things, and those only, are properly to be deemed necessaries which pertain to the becoming and suitable maintenance, support, clothing, health, education, and appearance of the infant, according to his condition and rank in life, the employment or pursuit in which he is engaged, and the circumstances under which he may be placed as to profession or position. Coke Lit. 172a; Whittingham v. Hill, Cro. Jac. 494; Ive v. Chester, Cro. Jac. 560. If this be so, then matters which pertain only to the preservation, protection, or security of the infant's property are excluded from the list of necessaries, however beneficial. Whatever relates to his property is the legitimate business of a guardian, and, if transacted by the infant, may be avoided at his election."

In Barker v. Hibbard, 54 N.H. 539, 20 Am. Rep. 160, this holding is adhered to, but counsel fee for defending the minor in a bastardy proceeding is classed as "a necessary"; the action concerning his person and liberty.

In Thrall v. Wright, 38 Vt. (Book 12, Anno. Ed. 188) 494 it is said: "The defendant was a minor, had a note against his father, and employed the plaintiff, an attorney, to bring a suit on it against his father. The suit was afterwards discontinued. The boy told the attorney, when he applied to him to bring the suit, that he did not reside with his father, and that his father had given him his time. The father was a man of property, willing and able to support his son, and desired that he should remain at home. This suit is brought by the attorney to recover of the minor for his services and disbursements in the suit. The minor pleads infancy. The court below have found that the son's interest in the note, not beneficial to the minor, and not proper and expedient under the circumstances. (1) The plaintiff insists that in this finding there was error, and that, upon the facts disclosed in the case, the suit was necessary. Why? Not because the evidence did not tend to prove the fact that the suit was unnecessary, nor because the court exceeded their duty in finding the fact from the evidence, for the trial was by the court. If there was error in this finding, it must be because, as matter of law, in all cases where a father is indebted to his minor son, a lawsuit with the father is a necessary for the son. We are not prepared to establish such a rule. Prof. Parsons, in his work on Contracts, p. 246, enumerates in his list of articles not necessaries for an infant: 'Horses, saddles, bridles, liquors, pistols, powder, whips, and fiddles, balls and serenades, counsel fees, and expenses of a lawsuit'--citing Phelps v. Worcester, 11 N.H. 51. But the circumstances of each case must govern. Thus, a horse might be...