Grissom v. Beidleman

• Decision Date: 31 December 1912
• Docket Number: Case Number: 3283
• Parties: GRISSOM et al. v. BEIDLEMAN et al.
• Court: Oklahoma Supreme Court

1912 OK 847
129 P. 853
35 Okla. 343

GRISSOM et al.
v.
BEIDLEMAN et al.

Case Number: 3283

Supreme Court of Oklahoma

Decided: December 31, 1912

Syllabus

¶0 1. INFANTS--Actions to Protect Real Estate--Services of Attorney--"Necessaries." Where suit was brought in the name of a minor, who was under the age of eighteen years, by direction of her next friend, to protect the infant's title to certain real estate, held, that 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.

2. SAME--Disaffirmance of Contract. 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.

3. SAME--Avoidance of Contract. 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.

4. APPEAL AND ERROR--Sufficiency of Petition--Errors Apparent of Record. 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.

George James, for plaintiff in error Grissom. A. S. McRea, for plaintiff in error Green. Merwine & Newhouse and George C. Beidleman, for defendants in error.

WILLIAMS, J.

¶1 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 eighteen 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 1909; section 3912, Wilson's Rev. & Ann. St. 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 1909; section 3913, Wilson's Rev. & Ann. St. 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 1909; section 3915, Wilson's Rev. & Ann. St. 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 1909; section 3916, Wilson's Rev. & Ann. St. 1903.) In all cases other than those specified in said sections 3915 and 3916, Wilson's Rev. & Ann. St. 1903 (sections 5038 and 5039, Comp. Laws 1909), the contract of a minor, made by him whilst he is under the age of eighteen, 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 eighteen 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 1909; section 3914, Wilson's Rev. & Ann. St. 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 Okla. 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 Okla. 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 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

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