Slayton v. Barry

• Decision Date: 03 March 1900
• Citation: 175 Mass. 513,56 N.E. 574
• Parties: SLAYTON v. BARRY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

175 Mass. 513

56 N.E. 574

SLAYTON v. BARRY.

Supreme Judicial Court of Massachusetts, Middlesex.

March 3, 1900

COUNSEL

Wiggin & Fernald, for plaintiff.

W. F Kimball, for defendant.

OPINION

MORTON, J.

The declaration in this case is in two counts. The second count is in trover for the goods described in the first count. The first count alleges, in substance, that the defendant intending to defraud the plaintiff, deceitfully and fraudulently represented to him that he was of full age, and thereby induced the plaintiff to sell and deliver to him the goods described, and, though often requested, had refused to pay for or return the goods but had delivered them to persons unknown to the plaintiff. The case is here on exceptions to the refusal of the presiding judge to give certain instructions requested by the plaintiff, and to his ruling ordering a verdict for the defendant. The question is whether the plaintiff can maintain his action. He could not bring an action of contract, and so has brought an action of tort. The precise question presented has never been passed upon by this court. Merriam v Cunningham, 11 Cush. 40, 43. In other jurisdictions it has been decided differently by different courts. We think that the weight of authority is against the right to maintain the action. Johnson v. Pie, 1 Lev. 169, 1 Sid. 258, 1 Keb. 905; Grove v. Nevill, 1 Keb. 778; Jennings v. Rundall, 8 Term R. 335; Green v. Greenbank, 2 Marsh. 485; Price v. Hewett, 8 Exch. 146; Wright v. Leonard, 11 C. B. (N. S.) 258; De Roo v. Foster, 12 C. B. (N. S.) 272; Gilson v. Spear, 38 Vt. 311; Nash v. Jewett, 61 Vt. 501, 18 A. 47, 4 L. R. A. 561; Ferguson v. Bobo, 54 Miss. 121; Brown v. Dunham, 1 Root, 272; Geer v. Hovy, Id. 179; Wilt v. Welsh, 6 Watts, 9; Burns v. Hill, 19 Ga. 22; Kilgore v. Jordan, 17 Tex. 341; Benj. Sales (6th Ed.) 23; Cooley, Torts (2d Ed.) 126; 2 Add. Torts, § 1314. See, contra, Fitts v. Hall, 9 N. H. 441; Eaton v. Hill, 50 N.H. 235; Hall v. Butterfield, 59 N.H. 354; Rice v. Boyer, 108 Ind. 472, 9 N.E. 420; Wallace v. Morss, 5 Hill, 391.

The general rule is, of course, that infants are liable for their torts. Sikes v. Johnson, 16 Mass. 389; Homer v. Thwing, 3 Pick. 492; Shaw v. Coffin, 58 Me. 254; Vasse v. Smith, 6 Cranch, 226, 3 L.Ed. 207. But the rule is not an unlimited one. It is to be applied with due regard to the other equally well settled rule, that, with certain exceptions, they are not liable on their contracts; and the dominant consideration is not that of liability for their torts, but of protection from their contracts. The true rule seems to us to be as stated in Association v. Fairhurst, 9 Exch. 422, 429, where it was sought to hold a married woman for a fraudulent misrepresentation, namely: If the fraud 'is directly connected with the contract, * * * and is the means of effecting it, and parcel of the same transaction,' then the infant will not be liable in tort. The rule is stated in 2 Kent, Comm. (8th Ed.) § 241, as follows: 'The fraudulent act, to charge him [the infant], must be wholly tortious; and a matter arising ex contractu, though injected with fraud, cannot be changed into a tort in order to charge the infant in trover or case by a change in the form of the action.' In the present case it seems to us that the fraud on which the plaintiff relies was part and parcel of the contract, and directly connected with it. The plaintiff cannot maintain his action without showing that there was a contract, which he was induced to enter into by the defendant's fraudulent representations in regard to his capacity to contract, and that pursuant to that contract there was a sale and delivery of the goods in question. Whether, as an original proposition, it would be better if the rule were as laid down in Fitts v. Hall, supra, and Hall v. Butterfield, supra, in New Hampshire, and Rice v. Boyer, supra, in Indiana, we need not consider. The plaintiff relies on Homer v. Thwing, supra; Badger v. Phinney, 15 Mass. 359; and Walker v. Davis, 1 Gray, 506. In Walker v. Davis, supra, there was no completed contract, and the title did not pass. The sale of the cow by the defendant operated, therefore, clearly, as a conversion. Badger v. Phinney, supra, was an action of replevin; and it was held that the property had not passed, or if it had, that it had revested in the plaintiff in consequence of the defendant's fraud. The plaintiff maintained his action independently of the contract. In Homer v. Thwing, supra...