Mellott v. Sullivan Ford Sales

• Decision Date: 14 December 1967
• Citation: 236 A.2d 68
• Parties: Michael MELLOTT, by his father and next friend, James K. Mellott v. SULLIVAN FORD SALES.
• Court: Maine Supreme Court

Page 68

236 A.2d 68

Michael MELLOTT, by his father and next friend, James K. Mellott v. SULLIVAN FORD SALES.

Supreme Judicial Court of Maine.

Dec. 14, 1967.

Paine & Cohen, by Errol K. Paine, Bangor, for plaintiff.

Rudman, Rudman & Carter, by Paul L. Rudman, and Kenneth C. Roy, Bangor, for defendant.

Before WILLIAMSON, C. J., and WEBBER, TAPLEY, MARDEN, DUFRESNE, and WEATHERBEE, JJ.

WEATHERBEE, Justice.

On appeal. In an action in the District Court of District Three the plaintiff complains that while he was a minor of the age of nineteen years he purchased a truck from the defendant for which he paid the defendant $1,750.00 and that the truck was not a necessary. The plaintiff further complains that about two months later he elected to disaffirm the contract of purchase and returned the truck to the defendant demanding the return of the $1,750.00 which he had paid the defendant and that such demand was refused by the defendant. The defendant requested under M.R.C.P. 36(a) that the plaintiff admit that he is and was at the time of the purchase a married person and upon the plaintiff's failure to answer this request-thus establishing the fact-the defendant, pursuant to M.R.C.P. 56, moved for a summary judgment in its favor on the ground that there was no genuine issue as to any material fact. Upon the plaintiff's petition the matter was removed to the Superior Court of Penobscot County where the defendant's request for summary judgment was granted and the plaintiff's complaint dismissed by a Justice of the Superior Court. The plaintiff's appeal presents the issue of whether a married male minor may disaffirm on the ground of infancy a contract of purchase for property which is not a necessary and obtain the return of the purchase money.

The defendant's position is that 19 M.R.S.A. § 161 sufficiently removes the common law disability of a married male minor thereby enabling him to make a contract for purchase which is binding upon him. Section 161 reads as follows:

'A married person, widow or widower of any age may own in his or her own right real and personal estate acquired by descent, gift or purchase; and may manage, sell, mortgage, convey and devise the same by will without the joinder or assent of husband or wife; but such conveyance without the joinder or assent of the husband or wife shall not bar his or her right and interest by descent in the estate so conveyed. Real estate directly conveyed to a wife by her husband cannot be conveyed by her without the joinder of her husband, except real estate conveyed to her as security or in payment of a bond fide debt actually due to her from her husband. When payment was made for property conveyed to her from the property of her husband or it was conveyed by him to her without a valuable consideration, it may be taken as the property of her husband to pay his debts contracted before such purchase.'

The interpretation of this statute, as it applies to a married male minor, requires an examination of the history of the statutory enactments having to do with the removal of common law disabilities. The common law sought to protect the minor from the making of improvident contracts during his infancy by permitting him to rescind or disaffirm such contracts unless the articles sold to him were necessaries-the term necessaries meaning 'those things useful, suitable, and necessary for the minor's support, use, and confort, * * * limited in its inclusion to articles of personal use necessary for the support of the body and improvement of the mind of the infant * * *.' Utterstorm v. Myron D. Kidder, Inc., 124 Me. 10, 12, 124 A. 725 (1924). Persons engaged in selling to a minor did so at the risk that the sale might be disaffirmed by the minor unless that person could prove that the articles furnished to the minor were in the class of necessaries. Whitman v. Allen, 123 Me. 1, 121 A. 160, 36 A.L.R. 776 (1923); Spaulding v. New England Furniture Co., 154 Me. 330, 147 A.2d 916 (1959); Utterstrom v. Myron D. Kidder, Inc., supra.

In 1845, the Legislature enacted into law P.L.1945, Chap. 166, which restated the common law status of minors in this field and added the principle of ratification in writing. Chapter 166, which follows, has remained substantially in this form to this time.

'No action that may be brought after the passage of this act, shall be maintained against any person upon a contract made while a minor, unless the same is ratified in writing, signed by the party to be charged by said contract, after arriving at the age of twenty-one years, or by some person thereto by him lawfully authorized; provided that this act shall not apply to, or affect any contract made by a minor for necessaries, or to contracts for real estate of which a minor has received and retained the title.'

Such was the state of the law in Maine until the middle of the nineteenth century when the first change in the minor's contractual status came as the result of developments in the rights of married women.

In the eyes of the common law upon marriage a husband and wife became one person and that person was the husband. A married woman of any age was held incapable of entering into binding contractual relations and of acquiring or disposing of property. Upon marriage her husband took over all her personal property and the use of her real estate for his life and became responsible for her support, her debts and her torts. The courts of equity first recognized the need of a wife to have a separate estate in some intances and later a series of legislative actions beginning in 1821 extended the wife's powers. The purpose was to more fully insure the maintenance of the married woman and the availability of her property for that purpose, if necessary. Haggett v. Hurley, 91 Me. 542, 40 A. 561, 41 L.R.A. 362 (1898); Uhl v. Oakdale Auto Co., 157 Me. 263, 170 A.2d 914 (1963).

P.L.1821, Chap. 57, § 9 empowered the courts to authorize the wife to make contracts and sue in her own name during the time in which she was abandoned by her husband. R.S.1841, Chap. 87, § 29 extended this power to the wife whose husband was in the state prison.

In 1844 the Legislature for the first time permitted all married women to own and hold property in their own names by enacting Chap. 117, § 1, which read:

'Any married woman may become seized or possessed of any property, real or personal, by direct bequest, demise, gift, purchase or distribution, in her own name, and as of her own property; provided, it shall be made to appear by such married woman, in any issue touching the validity of her title, that the same does not in any way come from the husband after coverture.'

Our court was called upon to interpret this statute in the case of Howe v. Wildes, 34 Md. 566 (1852). This case is the first of a series of decisions of this court in which the statutory relaxation of the common law disabilities of married women and minors was rigidly construed by the court under the common law rule that statutes in derogation of the common law must have strict construction. There, a married woman tenant had given promissory notes in payment for real estate which she was buying. The demandants contended that the notes of a married woman were void and that therefore they were entitled to possession of the property. The tenant argued that since P.L.1844, Chap. 117, § 1 authorized married women to become seized and possessed of real estate by purchase, it necessarily by implication authorized such women to enter into contract to buy such property, contending that the word 'purchase' was intended to refer to property which had been bought. The court noted that the statute, being in derogation of the common law, could not be extended by implication beyond its express provision and rejected the tenant's contention and found the notes to be void and no consideration for the alleged sale. The court held that the Legislature had used the word 'purchase' in its common law technical meaning which signified the acquisition of property in one of six ways-by deed, devise, execution, prescription, possession or occupancy, or by escheat-and not with the intention of extending the married woman's powers to include contracting to buy property.

The word 'purchase' has continued in this section of the statute to this date, and neither the Ligislature nor the courts have extended the limitation on the meaning placed there by Howe.

The Legislature again altered the status of a married woman in 1852 when it enacted a law giving the married woman the right to dispose of property which had been acquired in the manner enumerated in P.L.1844, Chap. 117, i. e. 'by direct bequest, demise, gift, purchase or distribution * * *.' P.L.1852, Chap. 227, § 1, reads as follows:

'Sec. 1. Any married woman who is or may be seized and possessed of property, real or personal, as provided for in the acts to which this is additional shall have power to lease, sell, convey and dispose of the same, and to execute all papers necessary thereto in her own name, as if she were unmarried, and no action shall be maintained by the husband of any such married woman for the possession or value of any property held or disposed of her by her in manner aforesaid.' (Emphasis added.)

This section was the first to give a married woman the power to dispose of property which the 1844 law had authorized her to hold. It should be noticed that while the Legislature was removing some of the disabilities of coverture, it did not, specifically at least, remove the disability of infancy which still may have attached to the situation of a married female minor, but some two months later the same Legislature used clear and unambiguous language in giving married female minors the same status as to property that their married adult sisters had been given.

P.L.1852, Chap. 291, § 3, provides:

'Any married woman under the age of twenty-one years shall have, and may exercise, all the rights,...