Peck v. Cain

• Decision Date: 01 May 1901
• Citation: 63 S.W. 177
• Parties: PECK et al. v. CAIN et al.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

63 S.W. 177

PECK et al. v. CAIN et al.¹

Court of Civil Appeals of Texas.

May 1, 1901.

Appeal from district court, Bexar county; S. J. Brooks, Judge.

Action by J. M. Cain against L. P. Peck and others. From a judgment in favor of plaintiff, certain defendants appeal. Affirmed as to part, and reversed as to remainder.

W. W. King and Semp Russ, for appellants. C. L. Bates, Denman, Franklin & McGown, and T. D. Cobbs, for appellees.

FLY, J.

J. M. Cain instituted this suit against L. P. Peck, W. H. Peck, Ben Dubinski, Willie Schemmelpfennig, and the Dubinski Electric Light Company, alleging that he leased to Edward D. Levy a dwelling house on Madison street, in the city of San Antonio, for a term of two years, beginning December 14, 1899, at the rate of $55 a month, a lien being given in the lease contract on the household furniture and other personal property contained in said house; that the defendants had broken into said house after Levy abandoned the same, and took forcible possession of the property and converted it to their own use. He prayed for actual and exemplary damages. Appellants, answering, alleged that on December 13, 1899, they had sold to Levy the furniture in controversy, and that it was understood and agreed that the title to the furniture should remain in them until the purchase price was paid; that on December 20th Levy informed appellants that he was unable to pay for the property, and authorized them to take possession of it, and they thereupon proceeded to take possession of the same. They also pleaded that the property, if title to it passed to Levy, was exempt from a landlord's lien. Dubinski answered that he, as secretary, treasurer, and general manager of the Dubinski Electric Company, had ordered the employés of the company to remove a chandelier sold to Levy from Cain's house, after Levy had informed him that he could not pay for the chandelier and requested that it be taken from the house. The company answered to about the same effect, and Schemmelpfennig entered a general denial. Upon a plea of appellants, the plaintiff was compelled to make Levy a party, and he entered a plea of infancy at time of the execution of the rental contract, which was adopted by appellants. The cause was tried by jury, and the following verdict was returned: "We, the jury, find for plaintiff against Ed. D. Levy, L. P. Peck, W. H. Peck, on account of rent contract to January 10, 1901, the sum of $185.50. We also find for plaintiff against L. Peck exemplary damages, $300. We also find for plaintiff against W. H. Peck for exemplary damages, $10. We also find for plaintiff against Ed. D. Levy, Ben Dubinski, and Willie Schemmelpfennig, for value of chandelier, $10. We also find for plaintiff against Ben Dubinski, exemplary damages, $50. We also find for plaintiff against Willie Schemmelpfennig, exemplary damages, $1." Upon that verdict the judgment was rendered, but afterwards, upon the suggestion of the court, a remittitur of all the exemplary damages was entered. The appeal was perfected by Edward D. Levy, L. P. Peck, and W. H. Peck, but only the two last named have filed briefs in this court. The suit was dismissed as to the Dubinski Electric Company, upon a suggestion of its bankruptcy.

It was established by the facts that on December 9, 1899, J. M. Cain entered into a written rental contract with Edward D. Levy to lease him for the term of two years from December 14th his certain dwelling house on Madison street, city of San Antonio, in consideration of the payment by Levy of the sum of $55 per month. Levy paid for one month in advance, and, after remaining in the house for about ten days, abandoned the house and went to Mexico. In the contract made between Cain and Levy it was agreed that the former should have a lien upon all goods, furniture, chattels, or property belonging to the latter, as security for the payment of all rent due or to become due, all exemption laws being expressly waived. After Levy abandoned the house, L. P. Peck directed W. H. Peck, John Steeman, and H. C. Stapp, his employés, to go to Cain's house and remove the property, except the chandelier, therefrom, and it was taken and converted by them to their use. Dubinski removed the chandelier, which was of the value of $10. The property taken by appellants was worth $450. The house was rented by Levy, who at the time was a married minor, as a dwelling place for himself and family. The furniture taken from the house by the Pecks had not been paid for by Levy, and it was agreed at the time of its purchase that it should remain the property of L. P. Peck until paid for.

Much has been written on the question as to whether contracts made by infants are void, or only voidable; but the general rule may be considered settled now that none of an infant's contracts are void on account of nonage, but all of them are voidable, merely, with the exception of his contracts for the reasonable value of necessaries, and his contracts made in pursuance of statutory authority, which are binding. Cummings v. Powell, 8 Tex. 81; Parsons v. Keys, 43 Tex. 557; Askey v. Williams, 74 Tex. 294, 11 S. W. 1101, 5 L. R. A. 176; Schouler, Dom. Rel. §§ 411-415; Com. v. Graham, 157 Mass. 73, 31 N. E. 706, 34 Am. St. Rep. 255; Davis v. Caldwell, 12 Cush. 512; notes in connection with Craig v. Van Bebber (Mo. Sup.) 18 Am. St. Rep. 573 (s. c. 13 S. W. 906), in which every phase of the subject of the contracts of infants is discussed. The marriage of the infant does not remove the disability of infancy and render his general contracts any the more binding; but the capacity of an infant husband to contract for necessaries is enlarged by his marriage, and he will be bound for the reasonable value of necessaries for his family as well as himself. Burr v. Wilson, 18 Tex. 367; Inhabitants of Taunton v. Inhabitants of Plymouth, 15 Mass. 203; Walsh v. Young, 110 Mass. 396; Chapman v. Hughes, 61 Miss. 339. There are some authorities that hold that the promissory note or other written contract of the infant, although given for necessaries, is void; but the better authorities hold that an infant may be held liable on his express contract for necessaries, when the contract is of such a form that the consideration may be inquired into, and the amount agreed to be paid is simply the reasonable value of the necessaries, and the infant may show that the agreed sum is in excess of the reasonable value of the necessaries, and have it reduced to the proper sum. The last-named ruling has been adopted in Texas, and in the case of Askey v. Williams, above cited, it was said: "We apprehend, however, the better doctrine to be that an infant may make an express written contract for necessaries, upon which he may be sued, but that, by showing the price agreed to be paid was unreasonable, he can reduce the recovery to a just compensation for the necessaries received by him." So far the authorities are clear, and, had the minor occupied the premises during the year 1900, the judgment would clearly be right; but he was in the house for only part of a month, for the whole of which he had paid in advance, and the question presents itself, can an infant be held liable for the rent of a house for a longer time than he actually used it?

Very few cases involving the question of leases to or from infants are accessible, but those few seem to hold that a minor cannot be held for the rent of premises not used by him. In the notes to Craig v. Van Bebber (Mo. Sup.) 18 Am. St. Rep. 591 (s. c. 13 S. W. 906), it is stated that it was held in the Irish case of Blake v. Concannon, 4 Ir. R. C. L. 323, that "an infant lessee who enters into possession and enjoyment of the land is liable for an installment of rent coming due during such holding, and while he is an infant, if h...