Savage v. Lichlyter

• Decision Date: 31 March 1894
• Citation: 26 S.W. 12
• Parties: SAVAGE v. LICHLYTER et al.
• Court: Arkansas Supreme Court

26 S.W. 12

SAVAGE v. LICHLYTER et al.

Supreme Court of Arkansas.

March 31, 1894.

Appeal from circuit court, Crawford county; Hugh F. Thomason, Judge.

Action by Joseph J. Savage against Maria J. Lichlyter et al. on a bond. From a judgment for defendants, plaintiff appeals. Affirmed.

The defendants and other persons, not sued, were the heirs of George E. Miller, and as such the owners of a tract of land, and sold same to plaintiff. They executed at the same time the bond herein sued upon, reciting the sale of the land, and that certain of the owners were minors, and hence incapable of selling, and conditioned to be void if such minors should make proper deeds of conveyance upon attaining full age. One of the signers of the bond was a minor at the time. Suit is brought for a breach of the condition of the bond.

Turner & Turner, for appellant. Nimrod Turman and S. A. Miller, for appellees.

BATTLE, J.

There is a difference between an executory and an executed contract of an infant. In the latter case, the contract is binding until it is avoided. In the former case, it is without binding force until it is confirmed. If an infant is sued on his executory contract before or after becoming of age, if he has not confirmed it since his majority, the infancy is a perfect defense. Edgerly v. Shaw, 25 N. H. 514; Tobey v. Wood, 123 Mass. 88; Tyler v. Fleming, (Mich.) 35 N. W. 902; Bish. Cont. § 937; 1 Whart. Cont. § 50; Hale v. Gerrish, 8 N. H. 374; Fetrow v. Wiseman, 40 Ind. 148.

The stipulations made by the infant in this case, though connected, and forming parts of the same transaction, were virtually divided by the parties into two contracts, one of which was executed, and the other executory. His right to avoid the latter was not affected by the force, effect, or existence of the former. 1 Whart. Cont. §§ 46, 114.

The first instruction asked for by the plaintiff was properly refused by the court.

2. The seventh instruction asked for by appellant is not mentioned or referred to in the motion for a new trial, if the abstract of appellant be correct, and was therefore waived.

3. The objections of the appellant to the instructions given at the instance of the appellees are not insisted on in this court, and, we conclude, have been abandoned.

4. As the evidence is not set forth in the abstracts and briefs of the parties, we will not consider it, under the rules of this court.

Judgment affirmed.