Rice v. Boyer
| Decision Date | 16 December 1886 |
| Docket Number | 12,864 |
| Citation | 9 N.E. 420,108 Ind. 472 |
| Parties | Rice v. Boyer |
| Court | Indiana Supreme Court |
From the Clinton Circuit Court.
Judgment reversed with instructions to overrule the demurrer to the complaint.
F. F Moore, for appellant.
J. V Kent and J. W. Merritt, for appellee.
It is alleged in the complaint of the appellant, that the appellee, with intent to defraud the appellant, falsely and fraudulently represented that he was twenty-one years of age; that, relying on this representation, the appellant was induced to sell and deliver to the appellee, on one year's credit, a buggy and a set of harness; that the appellee, in payment for the property, delivered to appellant a buggy, and executed to him a promissory note, payable one year after date, and also executed a chattel mortgage to secure the payment of the note; that the appellee's representation was untrue; that he had not attained the age of twenty-one years; that on account of appellee's non-age the note can not be enforced; that the appellee avoided his note and mortgage by a sale of the mortgaged property, "and repudiates and refuses to be bound by his contract in reference thereto;" that the appellant brings into court the note and mortgage executed to him, and tenders them to the appellee. Prayer for judgment for the value of the property delivered to appellee.
To this complaint a demurrer was sustained, and error is assigned on that ruling.
The appellee's counsel defend the ruling principally upon the ground that the action was prematurely brought, inasmuch as it can not be determined that any injury will be done the appellant until the expiration of the year fixed for the payment of the property purchased of the appellant. We agree with counsel that the contract is voidable, not void, and that the appellee might have performed it notwithstanding his non-age if he had so elected. Price v. Jennings, 62 Ind. 111; Board, etc., v. Anderson, 63 Ind. 367; Shrock v. Crowl, 83 Ind. 243.
But this principle is not broad enough to meet the averment of the complaint, that the appellee has repudiated his contract and refuses to be bound by it. As the authorities relied on by counsel do not fully cover the case, further investigation is necessary, and the first step in this investigation is to ascertain and declare the effect of the infant's repudiation of his contract.
In Shrock v. Crowl, supra, the holding in Mustard v. Wohlford, 15 Gratt. 329, that, where the voidable act of an infant is disaffirmed, it avoids the contract ab initio, is fully approved. If this is the law, then, when the appellee repudiated his contract, he destroyed it for all purposes. It no longer bound him, nor could he take any benefit from it. If the contract was destroyed back to the beginning, it ceased to be operative for anybody's benefit. We think the principle of law is correctly stated in the cases to which we have referred, and that the conclusion we have stated is the logical, and, indeed, inevitable sequence of that principle. Tyler Infancy and Coverture, 78.
An infant may repudiate a contract respecting personal property during non-age. Briggs v. McCabe, 27 Ind. 327; Indianapolis, etc., Co. v. Wilcox, 59 Ind. 429; Clark v. VanCourt, 100 Ind. 113 (50 Am. R. 774); House v. Alexander, 105 Ind. 109 (55 Am. R. 189, 4 N.E. 891); Hoyt v. Wilkinson, 57 Vt. 404; Price v. Furman, 27 Vt. 268; Willis v. Twambly, 13 Mass. 204; Stafford v. Roof, 9 Cow. 626; Bool v. Mix, 17 Wend. 119.
The repudiation by the appellee was, therefore, a complete avoidance of the contract, effectually putting an end to its existence, both as to him and as to the adult with whom he contracted.
It is evident from what we have said, that the ground taken by the appellee's counsel is not tenable, for, when their client repudiated the contract, as it is alleged he did, it ceased to be effective for any purpose.
It is contended by appellee's counsel that the appellant can not recover the value fixed on the property by the contract, and that the complaint is, therefore, insufficient. There is a plain fallacy in this argument. If a complaint states facts entitling the plaintiff to relief it will repel a demurrer, although it may not entitle him to all the relief prayed. Bayless v. Glenn, 72 Ind. 5, and cases cited. The question as to the measure of damages is not presented by a demurrer to a complaint where a cause of action is presented entitling the plaintiff to some damages, for the question which the demurrer presents is, whether the facts are sufficient to constitute a cause of action.
The material and controlling question in the case is this: Will an action to recover the actual loss sustained by a plaintiff lie against an infant who has obtained property on the faith of a false and fraudulent representation that he is of full age?
Infants are in many cases liable for torts committed by them, but they are not liable where the wrong is connected with a contract, and the result of the judgment is to indirectly enforce the contract. Judge Cooley says: "If the wrong grows out of contract relations, and the real injury consists in the non-performance of the contract into which the party wronged has entered with an infant, the law will not permit the former to enforce the contract indirectly by counting on the infant's neglect to perform it, or omission of duty under it as a tort." Cooley Torts, 106. In another place the same author says: "So if an infant effects a sale by means of deception and fraud, his infancy protects him." Cooley Torts, 107. Addison, following the English cases, says: An infant is not liable "if the cause of action is grounded on matter of contract with the infant, and constitutes a breach of contract as well as a tort." Addison Torts, section 1314.
Upon this principle it has been held in some of the cases that an infant is not liable for the value of property obtained by means of false representations. Howlett v. Haswell, 4 Camp. 118; Green v. Greenbank, 2 Marsh. 485; Vasse v. Smith, 6 Cranch 226 ; Studwell v. Shapter, 54 N.Y. 249.
It is also generally held that an infant is not estopped by a false representation as to his age, but this doctrine rests upon the principle that one under the disability of coverture or infancy has no power to remove the disability by a representation. Carpenter v. Carpenter, 45 Ind. 142; Sims v. Everhardt, 102 U.S. 300, 26 L.Ed. 87; Whitcomb v. Joslyn, 51 Vt. 79 (31 Am. R. 678); Conrad v. Lane, 26 Minn. 389 (37 Am. R. 412, 4 N.W. 695); Wieland v. Kobick, 110 Ill. 16 (51 Am. R. 676); Ward v. Berkshire Life Ins. Co., ante, p. 301.
It is evident from this brief reference to the authorities, that it is not easy to extract a principle that will supply satisfactory reasons for the solution of the difficulty here presented. It is to be expected that we should find, as we do, stubborn conflict in the authorities as to the question here directly presented, namely, whether an action will lie against an infant for falsely representing himself to be of full age. Johnson v. Pie, 1 Lev. 169; Price v. Hewett, 8 Exch. 146; Liverpool, etc., Ass'n v. Fairhurst, 9 Exch. 422; Brown v. Dunham, 1 Root 272; Curtin v. Patton, 11 Sergt. & R. 305; Homer v. Thwing, 3 Pick. 492; Word v. Vance, 1 N. & McC. 197; Fitts v. Hall, 9 N.H. 441; Norris v. Vance, 3 Rich. 164; Gilson v. Spear, 38 Vt. 311.
Our judgment, however, is that where the infant does fraudulently and falsely represent that he is of full age, he is liable in an action ex delicto for the injury resulting from his tort. This result does not involve a violation of the principle that an infant is not liable where the consequence would be an indirect enforcement of his contract, for the recovery is not upon the contract, as that is treated as of no effect; nor is he made to pay the contract price of the article purchased by him, as he is only held to answer for the actual loss caused by his fraud. In holding him responsible for the consequences of his wrong, an equitable conclusion is reached and one which strictly harmonizes with the general doctrine that an infant is liable for his torts. Nor does our conclusion invalidate the doctrine that an infant has no power to deny his disability, for it concedes this, but affirms that he must answer for his positive fraud.
Our conclusion that an infant is liable in tort for the actual loss resulting from a false and fraudulent representation of his age, is well sustained by authority, and it is strongly entrenched in principle, although, as we have said, there is a fierce conflict. It has been sanctioned by this court, although, perhaps, not in a strictly authoritative way, for it was said by Worden, J., speaking for the court, in Carpenter v. Carpenter, supra, that
The reasoning of the court in the case of Pittsburgh, etc., R. W. Co. v. Adams, 105 Ind. 151, 5 N.E. 187, tends strongly in the same direction.
In Neff v. Landis, 1 Atlantic R. 177, it was said:
If it be true, as asserted in the case from which we have quoted that an infant who falsely and fraudulently represents himself...
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