Hood v. Duren
| Decision Date | 15 December 1924 |
| Docket Number | 15345. |
| Citation | 125 S.E. 787,33 Ga.App. 203 |
| Parties | HOOD v. DUREN. |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
While the contract of an infant is declared by the Code to be "void except for necessaries," it is the well-settled rule that such a contract is "not void, but voidable, at the election of the infant, when arriving at full age." Strain v. Wright, 7 Ga. 568 (1); Bell v. Swainsboro Fertilizer Co., 12 Ga.App. 81, 76 S.E. 756, and cases cited; Clyde v. Steger Piano Mfg Co., 22 Ga.App. 192, 95 S.E. 734. "The exemption of the infant is a personal privilege" (Civil Code 1910, § 4234), and his contract is subject to ratification by his retention or enjoyment, after attaining majority, of the consideration received. Civil Code, § 4233.
Civil Code 1910, § 5736. "What one induces another to regard as true is to be treated as the truth between them, if the party who acts has been misled to his damage by the conduct or statements of the other." American Freehold Land Mortgage Co. v. Walker, 119 Ga. 341 (3), 46 S.E. 426. Such estoppels in pais or equitable estoppels, which are primarily negative in their operation against the party making the statement or admission, rather than creative of any new right in the opposite party ( Parks v. Simpson, 124 Ga. 523, 524, 52 S.E. 616) under the practice in this state may be asserted in proceedings at law as well as those of equitable nature, and in courts having jurisdiction only of the former. See Walker v. Hillyer, 124 Ga. 857, 53 S.E. 313; Russell v. Turner, 14 Ga.App. 344, 349, 350, 80 S.E 731; Arnold v. Empire Ins. Co., 3 Ga.App. 685 (4), 707, 60 S.E. 470.
A defendant is estopped from exercising his privilege of avoiding a fair and reasonable contract upon the ground of his minority at the time the agreement was made, where it appears that he has received, enjoyed, and consumed its irrestorable benefits, and, where it appears that the plaintiff, dealing in good faith, was induced to act to his injury by reason of the false and fraudulent representation of the defendant with respect to his apparent majority, and that, in view of all the surrounding facts and circumstances, the plaintiff was justified in accepting such representation as true, and was free from fault or negligence on his own part, such as a failure to use all ready means of ascertaining the truth touching the defendant's apparent majority.
On the disputed issue of fact as to whether the defendant was or was not 21 years of age, the plaintiff offered to show by the testimony of himself and another witness the physical appearance of the defendant at the time the note sued on was executed; that they had known the defendant 4 or 5 years; that he had been married and living at the head of his family for about 4 years prior to the execution of the note; that his physical appearance was that of a man well over 21 years old; and that, basing their conclusion on these facts he was in their opinion then over 21 years of age. This evidence, which included the facts from which the opinion was formed, was admissible; the weight and probative value being for the jury. Hubbard v. Rutherford, 148 Ga. 238 (1), 96 S.E. 327; Dixie Mfg. Co. v. Ricks, 28 Ga.App. 160 (1), 110 S.E. 454. It was therefore error to exclude the same.
Error from City Court of Thomasville; W. H. Hammond, Judge.
Action by W. H. Hood against Charlie Duren. Judgment for defendant, and plaintiff brings error. Reversed.
Clifford E. Hay, of Thomasville, for plaintiff in error.
W. W. Alexander, of Thomasville, and Branch & Snow, of Quitman, for defendant in error.
Something might be said in elaboration of the principle of law contained in the third division of the syllabus. It has been laid down as a general rule that "the doctrine of estoppel has no application to infants." 31 Corpus Juris, 1005, § 33. It accordingly appears that in some jurisdictions the doctrine of estoppel in pais is not permitted to bind minors to an engagement, even though it may appear that the other party to the agreement has been induced to act to his injury by reason of the fraudulent conduct of the minor with reference thereto. There are decisions in jurisdictions in which this general rule is strictly observed which go so far as to apply it even where all the proper elements of estoppel are accompanied by false and fraudulent statements of the minor relating to the fact of minority itself. It appears, on the other hand, that the courts of numerous jurisdictions have not strictly adhered to the general rule prohibiting the application of the doctrine of estoppel to infants, and from many of these have come rulings to the effect that false and fraudulent misrepresentations by the infant touching his majority will estop him from setting up his disability, where the other party to the contract has acted in good faith to his injury and without fault or negligence on his part. La Rosa v. Nichols, 92 N. J. Law, 375, 105 A. 201, 6 A.L.R. 412; Commander v. Brazil, 88 Miss. 668, 41 So. 497, 9 L.R.A. (N. S.) 1117; Ferguson v. Bobo, 54 Miss. 121, 127; Looney v. Elkhorn Land Co., 195 Ky. 198, 242 S.W. 27; County Bd. of Education v. Hensley, 147 Ky. 441, 144 S.W. 63, 42 L.R.A. (N. S.) 643; Harseim v. Cohen (Tex. Civ. App.) 25 S.W. 977; Kilgore v. Jordan, 17 Tex. 341, 348; Klinck v. Reeder, 107 Neb. 342, 185 N.W. 1000; Cobbey v. Buchanan, 48 Neb. 391, 67 N.W. 176; Stallard v. Sutherland, 131 Va. 316, 109 S.E. 568, 18 A.L.R. 516; Lewis v. Van Cleve, 302 Ill. 413, 134 N.E. 804; Davidson v. Young, 38 Ill. 145; ...
To continue reading
Request your trial