Whitman v. Allen

• Decision Date: 05 June 1923
• Citation: 121 A. 160
• Parties: WHITMAN v. ALLEN.
• Court: Maine Supreme Court

121 A. 160

WHITMAN

v. ALLEN.

Supreme Judicial Court of Maine.

June 5, 1923.

Report from Supreme Judicial Court, Oxford County, at Law.

On report, action by Arthur Whitman against Mark Allen. Judgment ordered for plaintiff.

Argued before CORNISH, C. J., and SPEAR, PHILBROOK, DUNN, WILSON, and DEASY, JJ.

Alton C. Wheeler, of South Paris, for plaintiff.

Henry H. Hastings, of Bethel, and Frederick R. Dyer, of Portland, for defendant.

CORNISH, C. J. The case here presented on report is that of a minor who had made two separate and independent trades with the same party, one an exchange of personal property and the other a mortgage of personal property as security for money borrowed. After attaining his majority, the minor disaffirmed both trades by bringing this suit to recover the value of the property transferred to the defendant without restoring or offering to restore or to be accountable for the property received by him in exchange in the first instances, or the money received in the second. His action is based upon his infancy. Another claim, that of plaintiff's mental incapacity, was raised and pressed; but the evidence fails to substantiate it, and that issue may be disregarded, leaving only the question of infancy for consideration.

It might be questioned whether the plaintiff's rights, if any, could technically be established in this form of action, which is assumpsit with an account annexed for the value of the goods exchanged and with a common count for goods sold and delivered. There is force in the defendant's contention that if the contracts were voidable by reason of infancy, title never vested in the defendant, or, if it vested, it was a conditional vesting subject to being divested, and, upon disaffirmance, the plaintiff's remedy would be by replevin if the property were still in the defendant's possession, or by trover if he had disposed of it.

But when a case is submitted to the law court on report, all technical questions of pleading are deemed to be waived unless the contrary appears. Pillsbury v. Brown, 82 Me. 450, 19 Atl. 858, 9 L. R. A. 94; Elm City Club v. Howes, 92 Me. 211, 42 Atl. 392; Rush v. Buckley, 100 Me. 322, 61 Atl. 774, 70 L. R. A. 464, 4 Ann. Cas. 318; Robbins v. Railway Co., 100 Me. 496, 62 Atl. 136, 1 L. R. A. (N. S.) 963. The contrary does not appear here, the certificate of the presiding justice being in the usual form. We may therefore consider and determine the rights of the parties independent of technical pleading and view the action as equitable in its nature, the defendant in equity and good conscience being asked to account for the value of the property transferred to him under a voidable contract since disaffirmed.

The essential facts are these: The plaintiff was born on October 17, 1899, and attained his majority on October 17, 1920. During the summer and fall of 1919 he was living In Woodstock and was engaged in the business of buying, butchering, and selling cattle, sheep, and hogs, conveying many of them to Auburn. The defendant is a retail merchant at Bryants Pond, having resided there many years. He had known the plaintiff well and had given him credit at various times for goods purchased at his store.

First Transaction.

In August, 1919, the plaintiff bought a secondhand Ford, known in this case as the "red truck," from Ripley and Fletcher, at the agreed price of $600, paying $100 in cash and giving his father's note for the balance, which note the father subsequently paid. In the early part of October, 1919, he took this truck after a season of very hard usage to a garage in Bethel for repairs. Later in the same month he went to the defendant and solicited him for an exchange of the red truck, still in the garage, for a lighter truck owned by the defendant. This lighter truck with its repairs stood the defendant about $450 or $500. They made an exchange, the defendant giving the plaintiff in addition to his light truck a store account against him amounting to about $50. The defendant paid a substantial repair bill on the red truck so that the trade would seem to be a fair one on both sides, the plaintiffs truck in its unrepaired condition being worth no more than the defendant's truck plus the discharged store account. The plaintiff exchanged the light truck the next day with one Stevens for a horse.

Second Transaction.

On the evening of October 18, 1919, a second transaction took place. The plaintiff solicited the defendant for a loan of $200, giving his Holmes note for that amount secured by a Ford touring car then in a garage for repairs. This car he had obtained from his father at an agreed price, before being damaged, of $350, but had never paid for it. The defendant made the loan, giving the plaintiff $100 in cash and a check for $100, and taking the Holmes note and the car. Defendant also paid the repair bills on this car amounting to $125, of which amount $96.89 had been incurred on Whitman's credit before the trade, and the balance on Allen's credit after the trade. Allen took the car home, commenced but did not complete foreclosure proceedings, used it for about a year, and then sold it to one Littlehale.

We will consider the legal rights of the parties in these two transactions separately.

The single legal problem in the first exchange is whether the plaintiff can recover in this action the full value of the red truck and not account for or give credit for the value of what he received, the small truck and the store account, a part of which was for necessaries.

At common law the minor was conceived to be a person needing legal protection because of his inexperience and improvidence. From these he must be saved. Hence it was held that the contracts of a minor except for necessaries were voidable on his part and could be rescinded or disaffirmed by him either during his minority or within a reasonable time thereafter.

Our statute has gone a step further, and in an action against a minor requires the ratification, if one is claimed, to be in writing, viz.:

"No action shall be maintained on any contract made by a minor, "unless he, or some person lawfully authorized, ratified it in writing after he arrived at the age of twenty one years, except for necessaries, or real estate of which he has received the title and retains the benefit." R. S. c. 114, § 2, originally Public Laws 1845, c. 166.

This statute applies only in suits brought against a minor, where he is acting on the defensive. It has no application where one acts on the offensive and seeks to recover the consideration paid by him on a contract made during minority. Hilton v. Shepherd, 92 Me. 160, 42 Atl. 387. It therefore is beside the pending case and we may decide this cause upon general legal principles.

As to the obligation to return or account for the consideration received by the minor, upon his repudiation of an executed contract there is a diversity of authority.

New Hampshire has adopted a broad rule, namely, that a person seeking to avoid an executed contract on the ground of infancy must account for what he has received under it, by restoring or paying the value of whatever remains in specie within his control and allowing for the benefit derived from whatever cannot be restored in specie. Hall v. Butterfield. 59 N. H. 354, 47 Am. Rep. 200; Bartlett v. Bailey, 59 N. H. 408; Stack v. Cavanaugh, 67 N. H. 149, 30 Atl. 350; Wooldridge v. Lavoie, 79 N. H. 21, 104 Atl. 346. Minnesota has adopted a somewhat similar rule, which is stated as follows:

"If the party dealing with the infant is guilty of actual fraud or bad faith, the infant is allowed to recover back what he has paid without making restitution except as to the extent to which he retains in specie that which he has received. Such a case would be a contract essentially improvident, calculated to facilitate squandering the infant's estate. But if the contract was free from any fraud or bad faith and otherwise reasonable, fair and a provident contract for the infant, the latter may recover back what he has parted with, but must restore what he has received in the way of benefits. The one dealing with an infant is charged with the burden of proving that the contract was in all respects fair and reasonable, not tainted with fraud, undue influence or overreaching on his part." Berglund v. American Multigraph Sales Co., 135 Minn. 67, 160 N. W. 191; Braucht v. Graves-May Co., 92 Minn. 116, 99 N. W. 417.

The reason given for these rules is that minors should not be permitted to use the shield of infancy as a cover, or turn it into a sword with which to injure others dealing with them in good faith.

The overwhelming weight of authority, however, holds to a somewhat narrower rule, which is that if an infant when he seeks to avoid a sale of property by himself has in his possession the specific property which came to him under the contract, or any part of it, he must return it or account for it as a prerequisite to the recovery of the amount paid by him, unless he has wasted, consumed, or destroyed it, rendering restoration impossible. The reason on which this rule is based is well stated in a recent case:

"To say that he [the minor] shall not have the protection by disaffirmance, with which the policy of the law seeks to guard him, unless he has had sufficient prudence to retain the consideration of the contract he wishes to avoid, would in many instances deprive him, because of his indiscretion, of the very defense which the law intended that he should have against the results of his indiscretion." McGuckian v. Carpenter, 43 R. I. 94, 110 Atl. 402, 16 A. L. R. 1473.

Or as stated more concisely in an early case in this state:

"If he had received property during infancy and had spent, consumed, or wasted, or destroyed it; to require him to restore it, or the value of it, upon avoiding the contract would be to deprive him of the very protection, which it is the policy of the law to afford him." Boody v....