Schoenung v. Gallet

• Decision Date: 10 November 1931
• Citation: 238 N.W. 852,206 Wis. 52
• Parties: SCHOENUNG v. GALLET.
• Court: Wisconsin Supreme Court

206 Wis. 52

238 N.W. 852

SCHOENUNG

v.GALLET.

Supreme Court of Wisconsin.

Nov. 10, 1931.

Appeal from a judgment of the Circuit Court for Calumet County; Fred Beglinger, Circuit Judge.

Action by Leo Schoenung, by his guardian ad litem, against Helen Gallet, as administratrix of the estate of Robert H. Hippe, deceased. Judgment for defendant, and plaintiff appeals.--[By Editorial Staff.]

Reversed and remanded, with directions.

Plaintiff, while a minor, commenced this action on March 13, 1930, to recover possession of an automobile and his promissory note for $250, which he had delivered to defendant in exchange for another automobile, which plaintiff had returned to defendant. Plaintiff appealed from a judgment entered March 6, 1931, dismissing his complaint.Anthony E. Madler, of Chilton, for appellant.

Fox & Fox, of Chilton, for respondent.

FRITZ, J.

The following are the controlling facts as established by undisputed evidence, or as found by the trial court: On April 15, 1929, plaintiff, a minor, nineteen years of age, purchased from defendant an automobile for $300, for which he gave his judgment note for $250 and an automobile, which defendant accepted in trade at a valuation of $50. At that time plaintiff was an emancipated minor living with his parents on a farm, which was three miles from the city where he was employed at $75 per month in an implement business. His brother was a part owner of that business, and plaintiff usually drove with him to and from work. He had been working for several years, and had been permitted to keep his earnings, which he had used to provide his necessaries and to pay for two cheaper automobiles. Up to June 6, 1929, he had driven the automobile, which he had purchased on April 15, 1929, from six hundred to one thousand miles on pleasure trips, and had used it occasionally in going to or from his work. On several occasions he had left it at defendant's garage for adjustments and repairs for which no charges were made. On June 6, 1929, he restored the automobile to defendant by leaving it at defendant's garage, and he demanded the return of his note and his former automobile. Defendant refused to accept the returned automobile and the certificate of title thereto, and also refused to return plaintiff's note and his former automobile, which defendant had sold and which had been wrecked. Later, on June 6, defendant removed the automobile, which plaintiff had returned, from defendant's garage to the public street in front of plaintiff's place of employment. A traffic officer ordered plaintiff to remove it from the street, and plaintiff then took it to his father's farm, where it has remained. Since then plaintiff offered it to defendant several times, but defendant refused to accept it. The terms of the purchase were fair and reasonable, and there was nothing wrong with the automobile when plaintiff returned it on June 6. There is no evidence as to its value at that time.

The court concluded that the automobile was necessary to plaintiff to carry on his business and employment; that he was an emancipated minor and liable on his contract; and that he was not entitled to rescission and to recover his note and former automobile.

[1] That plaintiff was an emancipated minor was immaterial as a matter of law in this action. Emancipation does not remove or affect a minor's incapacity to subject himselfto contractual liability for things which are not necessaries. 14 R. C. L. 219, § 6; 31 C. J. 1008, § 37; Tyler v. Gallop's Estate (Tyler v. Fleming), 68 Mich. 185, 35 N. W. 902, 13 Am. St. Rep. 336;Person v. Chase, 37 Vt. 647, 88 Am. Dec. 630;Wickham v. Torley, 136 Ga. 594, 71 S. E. 881, 36 L. R. A. (N. S.) 57;Mast v. Strahan (Tex. Civ. App. 1920) 225 S. W. 990;113 Am. St. Rep. 121, notes. Consequently, plaintiff lacked capacity to contract for the purchase of this automobile, unless it was a necessary for him under the particular facts and circumstances of this case. In 31 C. J. 1077, § 175, it is said: “The term ‘necessaries,’ as used in the law relating to the liability of infants therefor, is a relative term, somewhat flexible, except when applied to such things as are obviously requisite for the maintenance of existence, and depends on the social position and situation in life of the infant, as well as upon his own fortune and that of his parents. The particular infant must have an actual need for the articles furnished; not for mere ornament or pleasure. The articles must be useful and suitable, but they are not necessaries merely because useful or beneficial. Concerning the general character of the things furnished, to be necessaries the articles must supply the infant's personal needs, either those of his body, or those of his mind. However, the term ‘necessaries' is not confined to merely such things as are required for a bare subsistence. There is no positive rule by means of which it may be determined what are or what are not necessaries, for what may be considered necessary for one infant may not be necessaries for another infant whose state is different as to rank, social position, fortune, health, or other circumstances, the question being one to be determined from the particular facts and circumstances of each case.” To the same effect see, also, 14 R. C. L. 257, § 34.

In Covault v. Nevitt, 157 Wis. 113, 146 N. W. 1115, 1117, 51 L. R. A. (N. S.) 1092, Ann. Cas. 1916A, 959, the question arose as to whether a minor who owned real estate could contract for the employment of a janitor. This court said: “It is clear that in the instant case the alleged contract could only be sustained, if at all, upon the ground that it was a contract for necessaries; and it is equally clear that such a contract is not a contract for necessaries. 22 Cyc. 584, 585; Hollingsworth on Contracts, p. 31; 16 Am. & Eng. Ency. of Law (2d Ed.) 276. The general rule respecting necessaries is that they must be such as to supply the personal needs of the infant. Tupper v. Cadwell, 12 Metc. (Mass.) 559, 562, 46 Am. Dec. 704. Manifestly the contract in this case is not a contract for necessaries under which a liability could be enforced nor for the benefit of the infant.”

In Wallace v. Newdale Furniture Co., 188 Wis. 205, 205 N. W. 819, 820, a minor sought to recover money which she had paid as part of the purchase price for furniture, which she used for keeping roomers, and then returned during her minority to the defendant. This court said: “It has not been contended by counsel for the appellant that the articles purchased by the plaintiff were necessaries, and that she could not...