Kerr v. Bell

• Decision Date: 31 March 1869
• Parties: WILLIAM KERR, Defendant in Error, v. PATTERSON B. BELL, Plaintiff in Error.
• Court: Missouri Supreme Court

44 Mo. 120

WILLIAM KERR, Defendant in Error,

v.PATTERSON B. BELL, Plaintiff in Error.

Supreme Court of Missouri.

March Term, 1869.

Error to Sixth District Court.

Henderson, Dyer & Murray, for plaintiff in error.

I. The Circuit Court erred in causing the petition to be so amended as to change the issues, after the evidence had been closed, and in rendering a judgment upon the allegations of the petition, without an opportunity for defense.

II. To entitle the plaintiff to recover at all the contract must be rescinded. If there was a rescission or an abandonment of the contract, John Kerr must be a party to this proceeding--either plaintiff or defendant. (Teed v. Elworthy, 14 East. 210; Goode v. Harrison, 5. Barn. & Ald. 150; Thomason v. Frere, 10 East. 418; Murray v. Murray, 15 Johns. 70; Peters v. Davies, 7 Mass. 257; Wamsley v. Lindenberger, 2 Rand., Va., 478.)

III. If the court rescinds the contract in this proceeding because of infancy, the parties should be put in statu quo, which in this case can not be done. (3 Kent's Com. 33; 9 Johns. 470; 8 Greenl. 170; 17 Mass. 197; 3 N. H. 64; 7 Conn. 307; 15 Serg. & Rawle, 137; 19 Johns. 226; 18 Mart., La., 48; 2 Peters, S. C., 195; 5 Peters, S. C., 529.)

IV. It is doubtful whether the contract of an infant, made with consent of his guardian, should be set aside on the ground of infancy at all; and authorities show that money paid by an infant in execution of a contract should not be recovered back in the absence of fraud. (Stone v. Dennison, 13 Pick. 1; Breed v. Judd, 1 Gray, 450; Holmes v. Blogg, 8 Taunt. 508; 5 N. H. 345; 4 Blackf. 337; Goode v. Harrison, 5 Barn. & Ald. 150.)

V. If an infant puts his funds into a joint scheme with others, any one of whom may bind the firm, he can not recover back money paid out by his partners. If the infant can avoid any contract, it is that by which he entered the copartnership. He can not avoid a contract made by his partners with third persons, and much less should he be able to avoid them without making his copartners parties.

E. A. Lewis, Ewing & Holliday, and Howell & Campbell, for defendant in error.

I. The variance in the amended petition was not material. (Gen. Stat. 1865, p. 669, § 3.)

II. Many cases are reported in which infants have been joint contractors with adults, and in none of them was the right of disaffirmance ever questioned on that ground. (Smith v. Evans, 5 Humph. 27; Hillyer v. Bennett, 3 Edw. Ch. 222.)

III. This was a joint purchase of real estate, and nothing else. The terms of the purchase had no reference to the carrying on of a partnership together, with a communion of profits and losses. That might have been their intention; but, if so, it was wholly independent of the transaction with the defendant. (Grace v. Hale, 2 Humph. 27; Hill v. Anderson, 5 Smedes & Mar. 216; Smith v. Evans, 5 Humph. 70; Hillyer v. Bennett, 3 Edw. Ch. 222; Tyler on Infancy, etc., 75.)

IV. The minor was entitled to receive back all that he had paid. (Tyler on Infancy, etc., 75; 1 Am. Lead. Cas. 115-6.)

V. If, from anything in the nature of the case, it appear that the elder Kerr should have been made a party to the suit, that point has been waived by the defendant in his failure to demur for defect of parties. (Gen. Stat. 1865, p. 658, §§ 6, 10.)

VI. The whole case is settled by the defendant's acceptance of the surrender tendered by the plaintiff, and his subsequent acts confirming the mutual abandonment of the contract with plaintiff. The abandonment is executed on the part of the plaintiff, and the defendant, while enjoying its advantages in the possession and renting of the farm, yet refuses to perform his share. He can not now be permitted to recede from such an abandonment on any terms.

WAGNER, Judge, delivered the opinion of the court.

This was a proceeding originally instituted in Pike county Circuit Court, asking for a rescission or disaffirmance of a contract, and to recover the consideration paid on the contract sought to be rescinded. The ground on which the claim to relief was based by the plaintiff was that he was a minor when he entered into the contract, and that the same was subsequently abandoned by the mutual consent of both parties.

It appears that in the year 1859 William Kerr, the plaintiff, together with John Kerr, his brother, purchased a tract of land from defendant Bell, at the price of $11,000, payable one-third cash, and the remainder in two equal annual installments. The first payment was made, in part, by the conveyance of a house and lot in the town of Ashley, by one Wm. H. Purse, to defendant. The legal title thereof was in Purse, but the equitable ownership was in the Kerr brothers, at the estimated value of $3,500. The residue of the first payment was made in cash. The Kerrs moved upon and took possession of the farm and occupied it until the beginning of the year 1862. Defendant, at the same time, took possession of the Ashley house, and was still in possession at the commencement of the suit.

Notes and a title bond in the usual forms were delivered by the parties, respectively, in the original transaction. William Kerr, the plaintiff, was a minor at the time of the purchase, his brother and co-purchaser being of mature age. Plaintiff reached his majority on the 30th day of May, 1862. A short time after that date he called on the defendant and disaffirmed the entire transaction, delivering to defendant the key of the dwelling-house situated on the farm, and demanding to be restored to his original condition by a reconveyance of one undivided half of the Ashley house and half the money paid, and to be released from his obli gation on the notes given for the residue of the purchase money. The defendant accepted the key, took possession of and rented out the farm, has ever since been in peaceable possession, enjoying its rents and profits, and subsequently advertised it for sale. Afterwards, however, he repudiated the disaffirmance, and sued the plaintiff and his brother on the notes given for the purchase money. In that suit he seems to have been defeated. In this condition of things, plaintiff instituted this suit in enforcement of the disaffirmance, and to compel the restoration demanded. Such are the facts as substantially disclosed by the evidence and the finding of the Circuit Court. At the hearing, the Circuit Court gave judgment for the plaintiff, which was affirmed by the District Court, and the defendant sued out his writ of error.

It is urged as a ground of error, in this court, that the petition was defective, and that the elder Kerr should have been made a party. If that were true it is unavailing now; it was a matter that appeared on the face of the petition, and if the defendant desired to take advantage of it he should have resorted to his demurrer. By failing to do so, he waived the objection. (Gen. Stat. 1865, ch. 165, §§ 6-10.) The original petition, instead of mentioning the Ashley property as part of the first payment, stated that that payment was made in cash. When the evidence had been heard on the trial, plaintiff obtained leave to amend his petition, so as to make it conformable to the facts proved. The amendment was immediately made, the defendant excepting to the leave granted. I can perceive no just ground for complaint in allowing the amendment. The merits or...