Int'l Text-Book Co. v. Connelly

• Citation: 99 N.E. 722,206 N.Y. 188
• Parties: INTERNATIONAL TEXT-BOOK CO. v. CONNELLY.
• Decision Date: 01 October 1912
• Court: New York Court of Appeals

206 N.Y. 188

99 N.E. 722

INTERNATIONAL TEXT-BOOK CO.

v.CONNELLY.

Court of Appeals of New York.

Oct. 1, 1912.

Appeal from Supreme Court, Appellate Division, Fourth Department.

Action by the International Text-Book Company against Edward Connelly. From a judgment of the Appellate Division (140 App. Div. 939,125 N. Y. Supp. 1125), affirming a judgment of the County Court affirming a judgment for defendant in the Municipal Court of the city of Rochester, plaintiff appeals. Affirmed.

See, also, 140 App. Div. 942,126 N. Y. Supp. 1132.

The plaintiff is a stock corporation organized under the laws of the state of Pennsylvania, with its principal office at the city of Scranton, in that state. According to its charter, it was formed ‘to originate, write, compile, illustrate, edit, publish and sell instruction papers, text-books, drawing plates, periodicals, magazines, pamphlets, articles, and letters for the dissemination of literary, technical, educational and other information,’ etc. It carries on international correspondence schools in many states, ‘giving instruction by correspondence through the mails and otherwise to such persons as may desire the same, in mathematics, physics, the arts and sciences, English and foreign languages and in all subjects constituting a technical, scientific, classical or academic education. * * *’ It has agencies in this and other states to solicit persons to contract with it ‘for such correspondence instruction.’ For many years it has maintained in this state a system of organized canvassing, and now has five district and thirty division offices here. Each district office is in charge of a district superintendent who has under him a corps of plaintiff's representatives whose duties are to seek out persons desiring instruction and to induce them to subscribe therefor. The subscription papers are addressed to the plaintiff at Scranton, and are delivered with the initial payments by the solicitor to his division superintendent, who forwards the same to the plaintiff at Scranton, and, if it is accepted, the plaintiff enrolls the subscriber as a student in the course selected by him and sends him by mail from Scranton a counterpart of the subscription paper and a certificate of enrollment, but, ‘if it rejects the same, it returns to him the amount so paid.’ Instruction papers with directions how to commence and pursue his studies are sent to the student by mail from Scranton. Such bound volumes and outfit as his contract calls for are lent him by the plaintiff, the delivery being made either direct from Scranton or through a division office in this state. The student sends his papers by mail to the plaintiff at Scranton, and, after they are corrected, they are returned to him through the mail. All initial payments are deposited by the division superintendent in his own name in some bank in the city where his office is located, and subsequent installments are collected by him and deposited in the same way. All sums paid are ultimately turned over to the plaintiff by the checks of the division superintendent. The plaintiff owns no real property in this state, but pays rent and office expenses, including salaries, wages, commissions, and all other liabilities incurred by it within this state, by check direct from its Scranton office. The division offices are under the supervision of the district superintendent, and he ‘has the power to and does direct, regulate and superintend the management and conduct thereof and employ and discharge the division superintendent in charge thereof. Each division superintendent employs and discharges all other representatives of plaintiff in his division subject to the district superintendent's approval. * * * The plaintiff gives to its students in this state cash commissions and premiums in consideration of their procurement of new subscriptions to it.’ It sells text-books, drawing and other outfits, instruments, supplies and various publications to purchasers in this state and elsewhere. Drawing and answer paper suitable for use by students in their respective courses is purchased by plaintiff's district and division superintendents in this state and sold here. Every division superintendent and every representative in this state is required by plaintiff to be qualified to give instruction in mathematics to its students, and assistance in mathematics is given by them in such division offices to such students as desire the same. ‘A tutor is employed by plaintiff who gives such assistance in mathematics at the Rochester division office on Tuesday and Thursday evenings of each week from seven to nine o'clock. He is paid therefor direct from Scranton. Except as aforesaid the school of plaintiff is located at Scranton, Pa., and no branch is located in this state. Except as aforesaid the teachers and superintendents in such schools reside and perform their duties at Scranton as aforesaid and do not perform any such duties in this state. There are now more than three hundred students enrolled in the Rochester division’ where the defendant subscribed. The plaintiff's division superintendent at Rochester has a stenographer to assist him who is paid by him, but the amount is repaid by plaintiff as an item in his expense allowance. ‘On the glass door of the Rochester division office appears the words ‘The International Correspondence Schools of Scranton, Pa. Enrollment Office.’ There is a board sign above the entrance to such office which reads ‘Local Office International Correspondence Schools of Scranton, Pa. International Textbook Co., Proprietors.’' Plaintiff does all its business at Scranton aforesaid, unless the foregoing facts establish that it is doing business in this state.

The defendant resides at the city of Rochester in this state, and on the 2d of August, 1906, at that place he subscribed for a scholarship in the plaintiff's course of correspondence instruction in ‘Complete Steam Engineering.’ The subscription paper was forwarded by the division superintendent to the Scranton office, where it was accepted on the 6th of August, and a counterpart of the contract sent to the defendant by mail. He paid $5 down to one White, the solicitor and representative, who gave him a receipt for that amount ‘on account of scholarship as per written contract.’ The receipt was on a printed form furnished by the plaintiff, and was signed ‘International Text-book Company, Proprietors of the International Correspondence Schools, Elmer H. La Wall, Treasurer, by J. A. White, Representative,’ all of which was printed except the signature of White. According to the contract embodied in the subscription paper, the defendant was to pay $5 each month until the sum of $75.20 in all was paid. On August 6, 1906, he paid $5 more to the division superintendent to apply on the price of such scholarship. By the terms of the contract $5 became due and payable on October 8, 1906, and that amount was paid to said superintendent on December 5, 1906. The further sum of $5 became due and payable on November 8, 1906, but it was not paid, and, no further payment having been made by the defendant, the plaintiff elected to treat the entire balance as due and payable as permitted by the contract. The defendant became 21 years of age on the 20th of August, 1906, although in the subscription paper signed by him on the second day of that month his age is stated as 21. After default in payment, upon demand of the plaintiff, the defendant returned the volumes loaned to him under the contract, but did not pay 15 cents for the cost of transportation as he had agreed therein. The plaintiff paid that sum, received the books, and now has them in its possession. It does not appear that the defendant received any instruction or derived any benefit from the contract after he became of age.

On the 4th of March, 1908, the plaintiff commenced this action against the defendant in the Municipal Court of the city of Rochester to recover a balance of $60.35 alleged to be due under the contract. The defendant in his answer pleaded infancy, ultra vires, and noncompliance by plaintiff with sections 15 and 16 of the General Corporation Law and section 181 of the Tax Law . Upon the trial no evidence was given, but the facts were stipulated substantially as stated, although in greater detail. Judgment was rendered by Municipal Court in favor of the defendant dismissing the complaint, and upon appeal to the County Court of Monroe county the judgment was affirmed. Upon further appeal the judgment of the County Court was, in turn, affirmed by the Appellate Division, one of the justices dissenting, and, leave having being duly given, the plaintiff appealed to this court.John H. Agate, of Rochester, and David C. Harrington, of Scranton, Pa., for appellant.

Smith O'Brien, for respondent.

VANN, J. (after stating the facts as above).

[1] At common law a male infant attains his majority when he becomes 21 years of age and all unexecuted contracts made by him before that date, except for necessaries, while not absolutely void are voidable at his election.

[2] The contract in question was executory in form and unexecuted in fact, and, as the defendant was under age when it was made, his infancy is an absolute defense, unless an answer is found in some of the questions raised by the learned counsel for the plaintiff.

[3] It is insisted that the contract was for necessaries, and hence was binding on the defendant, although he was an infant. What are necessaries depends on circumstances to some extent and frequently involves a question of fact. While the facts in this case were stipulated, the stipulation does not state that the contract was for necessaries nor any circumstances from which that inference could be drawn as one of fact. The word ‘necessaries,’ as used in the law, is a relative term, except when applied to such things as are obviously requisite for the maintenance of existence, and depends on the...