Miller v. Smith
| Decision Date | 24 October 1879 |
| Citation | 2 N.W. 942,26 Minn. 248 |
| Parties | Thomas A. Miller, an Infant, by his Guardian, v. Elihu Smith |
| Court | Minnesota Supreme Court |
Appeal by defendant from an order of the district court for Nobles county, Dickinson, J., presiding, refusing a new trial. The action was for the wrongful taking and subsequent conversion by the defendant, of one pony and one yoke of oxen, the property of plaintiff.
Order affirmed.
Clark & Soule and M. J. Severance, for appellant.
Daniel Rohrer, for respondent.
The complaint is not only for an alleged wrongful taking originally, and an unjust detention, but for a subsequent conversion of the property after demand. There was some evidence to support a finding that after the purchase of the property by defendant at the foreclosure sale, and while he still had it in his possession and control, the plaintiff disaffirmed the transaction, on the ground of his infancy demanded a return of the property, which was refused, and that the defendant afterwards sold and disposed of the same to his own use. The exception taken to the refusal to charge the defendant's second request cannot, therefore, be sustained. [*]
The main point presented for adjudication, however, is upon the correctness of the court's refusal and charge upon the right of the plaintiff, because of his infancy, to avoid the mortgage he gave to the defendant, and reclaim the mortgaged property, without returning to the defendant the money which he borrowed of him, and for which the mortgage was given as security. The instruction asked was as follows: "The plaintiff, if a minor, could not disaffirm the sale by mortgage to the defendant, and reclaim the mortgaged property in question as received by it, without returning the money secured by it." This the court refused, and thereupon instructed the jury that, "if they should find the plaintiff to be a minor, still he may recover in this action, without returning or offering to return to defendant the consideration secured by the mortgage in question, or the money by him borrowed of defendant." To this refusal and instruction the defendant excepted, and now claims error on the ground that the plaintiff could not avoid the mortgage without repaying the loan made of defendant, and that is the only point presented for our consideration.
The facts bearing upon this point, as gathered from the evidence, viewed in the most favorable light for defendant, are briefly these:
The plaintiff, an infant, being indebted to one Law upon a promissory note of $ 40, part purchase-money of a pony, made a loan of the defendant which he mostly used in paying up that note. To secure this loan, he gave the defendant his note, secured by a chattel mortgage upon the pony and a yoke of oxen, of which the note and mortgage in controversy are renewals. The amount of this last note and mortgage is $ 70 principal, due in two months, and drawing twelve per cent. per annum interest. This sum of $ 70 actually included $ 12.70 for discount, commission, charges and expenses, so that plaintiff realized on his loan only $ 70, less that sum. It is recited in the mortgage that the pony was bought of one Law for $ 65, and the cattle of one Funk for $ 125, and that they had been paid for. No delivery of the mortgaged property was ever made by the plaintiff to defendant, but they were taken from his possession without consent, upon default in the conditions of the mortgage, and sold on foreclosure, the defendant bidding them in himself, when plaintiff gave notice of his disaffirmance of the note and mortgage, and demanded possession of the property.
The plaintiff testifies that he used the pony for herding, and the cattle for plowing and breaking. Aside from this, there was no evidence tending to show the plaintiff's business or occupation, or bearing at all upon his condition or circumstances in life. Upon these facts it is clear that the mortgage was not one for securing the purchase-money of mortgaged property bought of the mortgagee, as was the case in Cogley v. Cushman, 16 Minn. 397, 402 cited by defendant; neither was it a contract of security for necessaries, nor for moneys to be used in buying them. A pony is not within the class of necessaries, as that term, in its legal sense, is ordinarily used and applied. Rainwater v. Durham, 11 S.C. L. 524, 2 Nott & McCord 524; Smithpeters v. Griffin, 49 Ky. 259, 10 B. Mon. 259; McKanna v. Merry, 61 Ill. 177; Merriam v. Cunningham, 11 Cush. 40. It can never be so regarded, except, perhaps, in a case where, from some special circumstances, its use to the infant can be...
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