Hood v. Duren

• Decision Date: 15 December 1924
• Docket Number: (No. 15345.)
• Citation: Hood v. Duren, 33 Ga.App. 203, 125 S.E. 787 (Ga. App. 1924)
• Parties: HOOD. v. DUREN.
• Court: Georgia Court of Appeals

33 Ga.App. 203

125 S.E. 787

HOOD.

v.DUREN.

(No. 15345.)

Court of Appeals of Georgia, Division No. 2.

Dec. 15, 1924.

(Syllabus by the Court.)

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.

JENKINS, P. J. [3] 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 in-duced 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, 302 111. 413, 134 N. E. 804; Davidson v. Young, 38 III. 145; Prouty v. Edgar, 6 Iowa, 853; Adams v. Fite, 3 Baxt. (Tenn.) 69; Goodman v. Winter, 64 Ala. 410, 437, 38 Am. Rep. 13; Guidry v. Davis, 6 La. Ann. 90.

In this state, whatever diversity of rulings may be found elsewhere, it has been uniformly recognized that the doctrine of estoppel is not altogether inapplicable to infants, but that it may in a proper case be given effect against them. Whittington v. Wright, 9 Ga. 23 (4), 28; Irwin v. Morell, Dud. 72; Larkin v. City of Darien, 69 Ga. 727 (2), 728; Jones v. Cooner, 137 Ga. 681, 683, 74 S. E. 51; Royal v. Grant, 5 Ga. App. 643 (2), 646, 63 S. E. 708. In Harris v. Collins, 75 Ga. 97 (2), 106, it was held that "the law places persons non sui juris under disabilities for the purpose of protecting their rights, but not to enable them to invade or assail the rights of others, " and the celebrated dictum of Lord Mansfield in Zouch ex dem. Abbot v. Parsons, 3 Burr. 1794, 97 Eng. Reprint, 1103, that the infant's privilege "is given as a shield, and not as a sword, " was approved. See, also, Strain v. Wright, 7 Ga. 568, 572. Thus, while none of the decisions of our own courts seem to have dealt with the doctrine of estoppel as applied to infants when the fraud practiced related to the fact of infancy itself, as it does in the instant case, yet, since our Supreme Court has uniformly recognized the general principle that the doctrine can be applied to minors, it would seem that, in a case like the instant one, the reasoning of those courts which recognize the same general rule, and which apply it to a...