Sanger v. Hibbard

• Decision Date: 27 October 1900
• Docket Number: 1,393.
• Citation: 104 F. 455
• Parties: SANGER et al. v. HIBBARD et al.
• Court: U.S. Court of Appeals — Eighth Circuit

104 F. 455

SANGER et al. v. HIBBARD et al.

No. 1,393.

United States Court of Appeals, Eighth Circuit.

October 27, 1900

Sanford B. Ladd (John C. Gage and Charles E. Small, on the brief) for plaintiffs in error.

J. H Gordon, for defendants in error.

S. S Sanger, Jr., the plaintiff in error, did not attain his majority until the 19th day of August, 1895. During his infancy he engaged, as a retail dealer, in the mercantile business in the Indian Territory, and purchased goods on a credit from Hibbard Bros., the defendants in error, and other wholesale merchants. On the 9th of November, 1894, Hibbard Bros. sued out a writ of attachment against Sanger, which was levied upon the stock of goods in his possession, which he had purchased from them and other merchants. Other attachments were levied on the same stock of goods,-- one in favor of W. W. Kendall Boot & Shoe Company, November 14 1894, and one in favor of Wingate, Stone & Welles Mercantile Company, November 16, 1894. On December 10, 1894, the stock of goods so levied upon was sold by the marshal under an order of the court, and the proceeds of the sale, which were less than the amount of the several attachments, paid into the registry of the court. On the same day Sanger gave a bond to dissolve the attachment, under section 337 of Mansfield's Digest of the Laws of Arkansas, in force in the Indian Territory. This bond was procured and furnished by George M. Shelley, one of Sanger's creditors, upon an agreement that Shelley should receive the proceeds of the sale of the goods in the registry of the court in payment of his claim against Sanger, and the costs and expenses and attorney's fees in the case. The money was received by Shelley, and the whole thereof appropriated by him, according to his agreement with Sanger. To an answer filed by the guardian ad litem of Sanger during his infancy, as well as an answer filed by him after he attained his majority, setting up in due form the foregoing facts, the court sustained a demurrer. The defendant declining to plead further, final judgment was rendered against Sanger and the sureties on his bond for dissolving the attachment for the amount of the plaintiff's claim, and on appeal to the United States court of appeals for the Indian Territory this judgment was affirmed, and thereupon the defendants removed the cause by writ of error into this court.

Before CALDWELL, SANBORN, and THAYER, Circuit Judges.

CALDWELL Circuit Judge, after stating the case as above, .

The argument in this case has taken somewhat of a wide range, but the case is in a narrow compass. The goods which Sanger purchased from the plaintiffs and others while still a minor where seized and sold on the attachment sued out against him and the proceeds of that sale were received by Shelly, one of his creditors, so that while he was yet a minor all the goods he had purchased during his minority, and the proceeds thereof, had passed out of his possession and beyond his control. On this state of facts, properly pleaded, was it error to render judgment in an action at law against him for the goods purchased while a minor? This question must be answered in the affirmative. The rule is well settled that an infant has an absolute right to disaffirm and avoid his contract for the purchase of property with which to enter into trade. He can repudiate his contract to pay for property purchased for such a purpose, and the seller has no redress, unless the property purchased remains in the possession and control of the infant. In such case the infant's repudiation of his contract revests the title to the property sold in the vendor, who may recover it in a proper action for that purpose. But this suit is upon the contract for the purchase of the goods, and there is no claim that the...