Shutter v. Fudge

• Decision Date: 18 December 1928
• Citation: 143 A. 896,108 Conn. 528
• Court: Connecticut Supreme Court
• Parties: SHUTTER v. FUDGE.

143 A. 896

108 Conn. 528

SHUTTER v. FUDGE.

Supreme Court of Errors of Connecticut.

December 18, 1928

Appeal from Court of Common Pleas, New Haven County; Walter M Pickett, Judge.

Action by Charles B. Shutter against Chester Fudge, to recover a balance alleged to be due for merchandise sold to the defendant, brought to the court of common pleas and tried to the court. Judgment for plaintiff, and defendant appeals. Error, and cause remanded, with directions.

Herman Levine and Benjamin D. Levine, both of New Haven, for appellant.

William L. Larash, of New Haven, and Leon M. Gabriel, of West Haven, for appellee.

Argued before WHEELER, C.J., and MALTBIE, HAINES, HINMAN, and BANKS JJ.

HINMAN, J.

This action was brought to recover a balance unpaid on the price of merchandise purchased by the defendant from the plaintiff. The defendant pleaded infancy, in that at the time of the purchase he was 17 years of age. The agreed facts, upon which the case was submitted, were that the defendant purchased the merchandise; that the reasonable market value was, as stated in the bill of particulars, $415.87, and the unpaid balance was $213; that the defendant purchased the merchandise for the purpose of assembling radio sets, and did so assemble the same, sold the sets, and received the benefit of the sales that the defendant has not returned to the plaintiff any part of the merchandise, and it is not available for such return; and that the defendant was at the time of purchase, and still is, a minor.

The trial court held that, since the defendant by disposing of the merchandise had rendered himself unable to place the plaintiff in statu quo, the defense of infancy was not available to him, and consequently rendered judgment for the plaintiff. This ruling is the only ground of appeal.

The question whether an infant is bound to return the consideration which he received or restore the adverse party to the status quo, as a condition of avoiding his contract, is one which has been considered in many cases in other states, and it has been found extremely difficult to evolve a general rule, which will operate fairly between the infant, who disaffirms a contract, and the other party to the transaction. It is evident that, if the infant is, in every case, bound to return the consideration which he received, or its equivalent, in order to avoid or rescind his contract, the protection accorded to him, as such infant, is seriously impaired, and may often be destroyed, for it is precisely because he is supposed to be improvident, and likely to misuse and squander what he receives, that his contracts are made voidable; it will amount to little, except in executory contracts and in cases where the infant is so prudent and careful in his management of the property which he receives under the contract that he really does not need the protection of the law. On the other hand, if the question be answered unqualifiedly in the negative, the infant may make the law the means of inflicting injustice, or even fraud, on one who has trusted him. 3 Page on Contracts, § 1617; 14 R. C. L. p. 238; 1 Elliott on Contracts, § 346.

Some early cases tended toward requiring an infant to return the consideration received by him, or its equivalent, if he had lost or squandered it. 3 Page on Contracts, p. 2787; 1 Elliott on Contracts, p. 564. In Riley v. Mallory (1866) 33 Conn. 201, 206, the court, citing Judge Reeve's lectures on Domestic Relations, states a general proposition that the law does not forbid an infant to contract, " but gives him for his protection the privilege of avoiding contracts which are injurious to him and rescinding all others, whether fair or not, whether executed or executory, * * * excepting from the operation of the privilege only contracts for necessaries, contracts which he may be compelled in equity to execute, and executed contracts, where he has enjoyed the benefit of them and cannot restore the other party to his original position." In that case the infant was the plaintiff, seeking to recover the purchase price paid for a gun which he had offered to return. Neither then nor since has occasion arisen for a determination by this court as to whether restoration of the adverse party to his original position is necessary in order to make effectual a disaffirmance by an infant. Catlin v. Haddox, 49 Conn. 492, 44 Am.Rep. 249; Gregory v. Lee, 64 Conn. 407, 30 A. 53, 25 L.R.A. 618; International Text Book Co. v. Doran, 80 Conn. 307, 68 A. 255; Creer v. Active Auto Exchange, 99 Conn. 266, 121 A. 888. We do not think that the general expression, above quoted, is to be regarded as committing the court to the extent of ruling that property which has been lost, wasted, or otherwise improvidently disposed of during minority must be restored, or its value accounted for, in order to enable an infant to obtain relief from liability under the contract through which it was received. See note to Englebert v. Pritchett (Neb.) 26 L.R.A. 177, 181, 182. To hold that an infant may not disaffirm his contract, " because by his indiscretion he has spent, consumed or injured that which he received, would be making his want of discretion the means of binding him to all his improvident contracts." Price v. Furman, 27 Vt. 268, 271, 65 Am.Dec. 194.

Those cases which inclined to require return of the consideration in order to avoid a contract because of infancy, have, for the most part, been overruled or limited by later cases. The rule now adopted by an overwhelming preponderance of authority is that " if the infant,...