Rutherford v. Hughes

• Decision Date: 13 March 1950
• Docket Number: No. 6013,6013
• Citation: 228 S.W.2d 909
• Parties: RUTHERFORD et al. v. HUGHES et al.
• Court: Texas Court of Appeals

Page 909

228 S.W.2d 909

RUTHERFORD et al. v. HUGHES et al.

No. 6013.

Court of Civil Appeals of Texas, Amarillo.

March 13, 1950.

Rehearing Denied April 17, 1950.

Sturgeon & Ewing, Pampa, and Simpson, Clayton & Fullingim, Amarillo, for appellants.

John F. Studer, Pampa, and F. H. McGregor, Amarillo, for appellees.

STOKES, Justice.

On January 7, 1948, the appellants, M. M. Rutherford and Haskell Dill, who were partners and doing business under the trade name of Rutherford Enterprises, sold to the appellee, Billie Pete Hughes, certain amusement equipment consisting of ball marble tables, grip scale machines and other similar articles. As consideration for the equipment appellee paid $2,000 in cash and executed a combination chattel mortgage and note for the sum of $5,566.38, payable in sixty-seven weekly installments of $83.08 each. Appellants required a cash payment of $3,000 and, to make up the difference between that amount and the amount of cash paid by appellee, appellant M. P. Downs paid to appellants Rutherford and Dill $500 in cash and cancelled a claim against them of $500 brokerage commission due him as commission for making the sale to the appellee. As evidence of, and to secure, this indebtedness, a notation was inserted in the mortgage-note that 'The last $1226.38 of this note is payable to M. P. Downs at Pampa, Texas.' Appellee was a minor, 18 years of age, when the transaction occurred; nevertheless, he made twenty or more payments on the note as the installments fell due and, on January 28, 1949, through his father, W. W. Hughes, as his next friend, he filed this suit against appellants for cancellation of the note and recovery of the amount he had paid them, which he alleged to be $3,963.08. He based the suit upon his minority at the time the note and mortgage were executed and alleged his disaffirmance of the contract and his willingness to return to the appellants the property he had purchased from them.

In their answer appellants pleaded facts constituting the basis of an estoppel upon the ground that, to induce them to sell to him the amusement equipment, appellee fraudulently represented to them that he was more than twenty-one years of age; that he took possession of the property, used it and earned large sums of money; and that he had not, in good faith, tendered or restored the property to them.

The case was submitted to a jury upon a single special issue in answer to which the jury found that, under all the facts and circumstances admitted in evidence surrounding the signing of the chattel mortgage note, the appellee, Billie Pete Hughes, did not reasonably induce the appellants to believe that he was twenty-one years of age or more at the time of signing the instrument in suit. No other issues were submitted to the jury by the court, no additional issues were requested by either party, and no objections were urged to the special issue as submitted.

Based upon the verdict of the jury, the court rendered judgment in favor of the appellee, Billie Pete Hughes, against appellants M. M. Rutherford and Haskell Dill, for the sum of $3,744.68 and cancelled the note and chattel mortgage. The property purchased by the appellee was decreed to the appellants Rutherford and Dill, and the court found that appellant Downs had failed to support his counter-suit against appellee and therefore denied Downs any recovery. Appellants filed their motion for a new trial which was overruled and they have brought the case to this court for review.

When properly analyzed, appellants' assignments of error present for our consideration three contentions. First, they contend that appellee's pleadings were not sufficient to constitute a tender or offer to restore the personal property which appellee had purchased from them, although it was still in his possession. Secondly, they contend that, under the pleadings and the evidence appellee was estopped from disaffirming the contract; and, thirdly, that the cause should be reversed because of improper and inflammatory argument made to the jury by appellee's counsel.

It has long been the established rule in this state that, with a limited class of exceptions, an infant's contracts are voidable at his instance, regardless of whether they are beneficial or injurious to him or not, and, if he still has the consideration or property received by him, he must restore it to the party with whom he contracted and from whom he received it. Prudential Building & Loan Ass'n. v. Shaw, 119 Tex. 228, 26 S.W.2d 168, 27 S.W.2d 157.

We think appellee's pleading was sufficient to constitute a tender or offer to restore the property. He alleged that he had theretofore tendered the property to appellants and that he was then ready and willing to return it to them. Moreover, before the suit was filed he had a conversation with appellant Rutherford in which he told Rutherford he wished to return the machines and all of the personal property listed in the mortgage. Rutherford admitted this and testified he would not accept it because appellee wanted his money back. After that conversation, on October 11, 1948, appellee's attorney wrote each of the appellants a letter in which he informed them he was representing appellee and demanded the return to appellee of the money he had paid to them. In this letter the attorney also offered to return the property to appellants. At no time did appellants signify their willingness to accept return of the property. The court found that appellee had tendered all of it to appellants and it was decreed to them by the judgment. In our opinion the tender and offer to return the property was complete and effective and we find no error revealed by the assignments under appellants' first contention.

Appellants next contend that appellee was estopped from pleading infancy and demanding cancellation of the note and mortgage. This contention is based principally upon a recital in...