Ross P. Curtice Company v. Kent
| Decision Date | 13 June 1911 |
| Docket Number | 16,496 |
| Citation | 131 N.W. 944,89 Neb. 496 |
| Parties | ROSS P. CURTICE COMPANY, APPELLEE, v. JAY KENT, ADMINISTRATOR, APPELLANT |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Hall county: JAMES R. HANNA JUDGE. Affirmed in part and reversed in part.
Judgment of the district court affirmed in part and reversed in part and cause remanded.
Arthur G. Abbott, for appellant.
Fred W Ashton, contra.
This is an action in replevin brought to recover a piano sold to defendant by plaintiff for $ 300 under a conditional sale contract whereby the title to the instrument was retained by the seller until it was fully paid for. Defendant was a minor 17 years of age at the time of the sale. He made default in certain monthly payments, and this action was brought to obtain possession. The piano was taken under the writ and delivered to plaintiff. Defendant pleaded infancy, that he had paid $ 106 on the piano, no part of which had been tendered or returned, and prayed for a return of the piano or for a judgment for the amount paid by him with interest. The cause was tried to the court without a jury. The finding and judgment were for the plaintiff, with a further finding that the plea of payment of $ 106 made by defendant is not a triable issue in the case. From this judgment defendant has appealed.
There is no dispute as to the facts. The only question presented is whether the plaintiff was entitled to retake the piano without returning the amount paid upon the contract. The plaintiff, while conceding that an infant may repudiate a contract respecting personal property during his minority, and that the disaffirmance completely puts an end to its existence both as to him and as to the adult with whom he contracted, and that, before an infant disaffirming a contract can recover property from an adult, he must return what he has received under the contract, argues that, under the rule announced in Schrandt v. Young, 62 Neb. 254, 86 N.W. 1085, the gist of an action in replevin is the right of possession, and the only damages that may be recovered are those arising from the unlawful detention, and insists that the district court properly held that the question of refunding the money paid cannot be determined in this action.
The plaintiff began this action relying upon the conditional contract. After it was begun the infant disaffirmed the contract, and by the act of disaffirmance effectually took away from the plaintiff any right it was then asserting thereunder. The parties then stood exactly in the same position with respect to the piano and the partial payments made thereon as if no conditional contract had ever existed. The contract being set aside by the disaffirmance, plaintiff, still being the owner of the piano, was in the same position as it would have been had it begun the action upon the rescission of an ordinary contract of sale. In such case, would it be permitted to obtain possession of the property in the infant's hands without returning the consideration paid? We think not. The rule is that one who in his minority obtained property which is still in his hands cannot after majority disaffirm and recover the property which he conveyed in exchange for it, unless he offer to return that which he has, and thus place matters as nearly as may be in statu quo. Englebert v. Troxell, 40 Neb. 195, 26 L. R. A. 177, 58 N.W. 852, and note; Jones v. Valentines' School of Telegraphy, 122 Wis. 318, 99 N.W. 1043; Corey v. Burton, 32 Mich. 30; Rodgers, Domestic Relations, sec. 683; Wuller v. Chuse Grocery Co., 241 Ill. 398, 28 L. R. A. n. s. 128, 89 N.E. 796. The rule applies with greater force to an adult, especially if he seeks to take property by legal process from an infant. Wagman v. Kessler & Co., 78 Neb. 263, 110 N.W. 545; Baker v. McDonald, 74 Neb. 595, 104 N.W. 923; Tootle v. First Nat. Bank, 34 Neb. 863, 52 N.W. 396. The plaintiff had no right after the disaffirmance to recover the property from the infant without tendering back the money it had received as a condition to recovery. Since the infant by his answer virtually conceded the right of plaintiff to recover the piano if a judgment for the money paid were rendered in his favor, we think the court would have been justified in treating the answer as being of the nature of a counterclaim, and in finding against plaintiff for the money paid and rendering judgment accordingly. The writer had some doubts as to whether a counterclaim for money could be set up in a possessory action, even under the liberal provisions of the code, but finds that such is not an unusual practice, and that it has received the sanction of other courts. It tends to the directness and certainty so much to be desired in legal proceedings, and does away with needless delay and circuity of action.
In an action to compel the delivery of certain bills of lading of goods and to restrain defendants from departing with the goods or from interfering with the merchandise which they represented, it was held in New York that a counterclaim for the price of the identical goods which were the subject of the action was a cause of action "arising out of the transaction," or at least "connected with the subject of the action," and is strictly a counterclaim within the provision of the code. Thompson v. Kessel, 30 N.Y. 383.
Where a horse was exchanged for land, and, it having returned to the possession of the original owner, an action in detinue was brought for its possession, the defense that certain false representations had been made in order to induce the original transaction and asking to have the contract of exchange rescinded was held to be properly allowable as a counterclaim. Walsh v. Hall, 66 N.C. 233.
Mr Pomeroy says, in Code Remedies (4th ed.) sec. *791: ...
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