Wallace v. Leroy
| Decision Date | 28 February 1905 |
| Parties | WALLACE v. LEROY. |
| Court | West Virginia Supreme Court |
Submitted February 21, 1905.
Syllabus by the Court.
1. Under section 14 of chapter 99 of the Code of 1899, an assignee of an open account can maintain an action at law thereon in his own name.
2. In such case the debtor will not be permitted to defeat the action by showing want or inadequacy of consideration for the assignment.
3. In an action at law against an infant for the purchase money of property sold to him, some of the proceeds of which he still has, the defendant may have the benefit of his plea of infancy without having returned or offering to return such property or proceeds.
4. When, in such case, the proceeds of the property so purchased have been attached in the hands of a third party, the plea of infancy, sustained by proof, annuls the contract, defeats collection of the debt, dissolves the attachment, and releases the funds.
5. Contracts for necessaries, such as food, lodging, clothing and other things essential to life and comfort, and in keeping with an infant's station in society, cannot be avoided on the ground of infancy.
6. As the law does not permit an infant to irrevocably bind himself by contract further than is absolutely necessary for his own good, and the carrying on of a trading business involves the making of contracts on his personal responsibility, articles furnished him for use in such business, and services rendered him in connection therewith, are not deemed necessaries; and he may disaffirm his contracts therefor, although he derives his living solely from such business.
7. The test of appellate jurisdiction in this court, when the plaintiff below is the plaintiff in error, and the matter in controversy is pecuniary, is the amount actually demanded in the court below, less the amount recovered, if anything, and not merely the amount, or additional amount, which he shows himself to be entitled to recover.
8. When the amount in controversy is sufficient to give appellate jurisdiction, but the plaintiff in error has been prejudiced in a sum less than the jurisdictional amount, the judgment will be reversed, but the costs in this court will be adjudged to the defendant in error, as the party substantially prevailing.
Error to Circuit Court, Cabell County; E. S. Doolittle, Judge.
Action by George S. Wallace against Charles Leroy. Judgment for defendant, and plaintiff brings error. Reversed.
Wallace & Fitzpatrick, for plaintiff in error.
J. W Perry and Geo. I. Neal, for defendant in error.
This case is governed by legal principles applicable to contracts made by persons affected by the disability of infancy. Charles Leroy, an orphan boy, dependent upon his own resources for a living, owned and managed a cigar stand in the Florentine Hotel, at Huntington, W. Va., prior to May 29 1902, and became indebted to a number of persons and firms for cigars, board, rent, and other things. Having become embarrassed, he gave his creditors worthless checks, moved part of his stock into the basement of an adjoining building prepared to leave the city, and, on the day above named, sold all his stock of goods to A. A. Hanly, and departed. Geo. S. Wallace, an attorney to whom several claims against Leroy, amounting to nearly $300, had been delivered for collection, took assignments of them, and, on the day of the sale to Hanly, instituted an action against Leroy before a justice of the peace, in which an attachment was sued out, and copies thereof served on Hanly and other persons who were supposed to be indebted to the defendant, or to have property in their hands belonging to him. Hanly answered, admitting indebtedness on account of the purchase money of the property, amounting to $371.73. The defendant appeared by guardian ad litem, and set up his infancy, among other defenses. A jury was waived, and the justice rendered a judgment in favor of the plaintiff for $269.72, and ordered the garnishee to pay the same, together with the costs, out of the money so due from him. In a trial de novo by a jury in the circuit court on appeal, a demurrer to the evidence was sustained by the court, and a judgment of nihil capiat entered.
As grounds for reversal of this judgment, it is argued that although the plea of infancy, sustained by proof, abrogated the contracts upon which the claims sued for were predicated, the plaintiff was entitled to have, not a personal judgment against the defendant for the amount of the claims, but satisfaction of them out of the proceeds of the property which the defendant sold to the garnishee. For the defendant, it is urged that the judgment is right, for two reasons: First, that the plaintiff showed no title to or interest in the claims on which he sued; and, second, conceding his right to sue, that, although he might be entitled to have the proceeds of any property sold which had belonged to the plaintiff, or the purchase money of which is represented by the claims in suit, he has wholly failed to show that the funds in the hands of the garnishee arose from property purchased from the plaintiff or any of his assignors.
The fact of assignment is not denied, but it is said there was not a sufficient consideration. As to this no inquiry could be permitted in a court of law. Section 14 of chapter 99 of the Code of 1899 gives an assignee of an account, as well as of a bond or note, the right to maintain an action thereon in his own name. This statute does not pass the legal title, but it does pass the equitable title, together with a right of action at law. Clarke v. Hogeman, 13 W.Va. 718; Garland v. Richeson, 4 Rand. 266; Whitteker v. Gas Co., 16 W.Va. 717; Billingsley v. Clelland, 41 W.Va. 234, 23 S.E.
812. The plaintiff, however, was put to the proof of his title, and showed that his interest was a certain percentage of the claims in consideration of his collecting them. This made him, of course, equitably, not the sole, but a joint owner with the assignors. However, he obtained the statutory right to sue by virtue of the assignment, whatever the consideration may have been. That he was only a trustee for his assignors as to parts of the claims can make no difference. That is a matter for settlement between them, in which the debtor has no interest, and of which he cannot complain. Where the assignment would, at common law, pass the legal title, or where the statute authorizes an action at law under an assignment, the debtor cannot raise the objection of want of consideration, for his only duty is to pay, and to whom the payment is to be made is necessarily immaterial to him. 4 Cyc. 31, 32.
The effect of the establishment of the fact of infancy depends upon the forum in which it is set up, the right in controversy, the time at which the benefit of it is claimed, and other conditions. Since the rules, principles, and processes of courts of equity are in many respects essentially different from those applied in courts of law, a party asserting rights to which he is entitled by reason of the disability of infancy may, in equity, be compelled to submit to conditions unknown to the common-law courts. As a condition of obtaining relief, he may be required to do equity, or to come into court with clean hands. For principles governing the procedure in equity in such cases, some of which are not applicable here--this being an action at law--see Mustard v. Wohlford's Heirs, 15 Grat. 329, 76 Am.Dec. 209; Bedinger v. Wharton, 27 Grat. 857; Gillispie v. Bailey, 12 W.Va. 92, 29 Am.Rep. 445.
Nor is this a possessory action by the infant to recover back specific property sold or bartered away by him. In such case he seeks to undo an executed contract, and to set up title to property; and many cases hold that he must return the money, or the property he received in exchange for it, if he is able to do so. 1 Min. Inst. 525; Taft v. Pike, 14 Vt. 405, 39 Am.Dec. 228; Weed v. Beebe, 21 Vt. 495; Kitchen v. Lee, 11 Paige, 107, 42 Am.Dec. 101; Price v. Furman, 27 Vt. 268, 65 Am.Dec. 194; Boody v. McKenney, 23 Me. 517; Manning v. Johnson (Ala.) 62 Am.Dec. 737. What acts of disaffirmance would be sufficient to revest the title in him need not be indicated here.
Many of the reported cases present instances of disaffirmance by infants after having attained their majorities, in which it is necessary to determine whether there has been a ratification. Aside from the question of ratification, this is important where the contract was one of sale of the infant's land, for it is said he cannot disaffirm such sale before he reaches maturity, since it requires as much discretion and judgment to rescind as to make a contract. 1 Min. Inst. 523. But he may have possession of the land against his contract while under age.
This is a mere personal contract whereby the infant has obligated himself to pay money, and which he repudiates while under age. Though executed on the part of the plaintiff's assignors, it is executory on his part. He is not seeking to recover either property or money, but simply defending against a demand for money. To avail himself of this defense, he need not return or offer to return what he has received. Weed v. Beebe, 21 Vt. 495; Fitts v. Hall, 9 N. H. 441; Burley v. Russell, 10 N.H. 184, 34 Am.Dec. 146; Aldrich v. Grimes, 10 N.H 194; Badger v. Phinney, 15 Mass. 359, 8 Am.Dec. 105. However, the legal effect of the plea, sustained by proof, is to annul the contract, and revest in the assignors of plaintiff, as against the defendant, the title to the property they sold him. If he has any of it, they may recover it from him by any proper possessory remedy. 1 Min. Inst. 524; 16 Am. & Eng. Ency. Law, 294; Badger v. Phinney, 15 Mass. 359, 8 Am.Dec. 105; ...
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