Potter v. Davidson

• Decision Date: 09 May 1933
• Citation: 21 P.2d 785,143 Or. 101
• Parties: POTTER v. DAVIDSON et al.
• Court: Oregon Supreme Court

21 P.2d 785

143 Or. 101

POTTER v. DAVIDSON et al.

Supreme Court of Oregon

May 9, 1933

Department 1.

Appeal from Circuit Court, Marion County; Gale S. Hill, Judge.

On petition for rehearing.

Petition denied.

For original opinion, see 20 P.2d 409.

B. S. Martin, of Salem (L. R. Martin, of Salem, on the brief), for appellant.

Ray L Smith and Ronald C. Glover, both of Salem, for respondents.

KELLY, Justice.

Plaintiff accompanies his motion for rehearing with a brief indicating the following points: (1) That the defense of infancy is personal to the minor; (2) that plaintiff performed the work in question at the instance of Paul M. Shearer, as owner; (3) that by reason of plaintiff's disaffirmance the contract under which plaintiff did said work became void ab initio and, therefore, the rights of the parties are to be determined as if said contract had never been made; and (4) that the foreclosure of a mechanic's lien is a proceeding in rem.

As to point 1, the fact of plaintiff's infancy was presented in this case by plaintiff. Plaintiff's case depends upon it. A majority of the department of the court, in which this case was heard, are of the opinion that when plaintiff presented the fact of his infancy and asked affirmative relief because of it, he thereupon placed a duty upon the court to give full effect to that status, and not to consider it in so far, merely, as it is helpful to plaintiff's claim.

As to point 2, we treated that matter in the original opinion and now adhere to the holding that plaintiff performed the work in question at his own instance, and that of his father, and not at the instance of Paul M. Shearer.

As to point 3, conceding that ab initio plaintiff's disaffirmance nullified his contract to purchase, we are then to determine, as in the absence of an express contract, what contract is to be implied. In this, a majority of the department, hearing this case, think that where a minor, who has not been emancipated and whose father is living, performs work for another without any express contract, the law implies a contract for the benefit of the father.

The cases to which our attention has been called, indicating that upon disaffirmance of an express contract the minor is entitled to a recovery, either take no cognizance of the question of whether the minor had been emancipated or not, or disclose that the minor had been emancipated, or that his parent or...