Wickham v. Torley

• Decision Date: 14 July 1911
• Citation: Wickham v. Torley, 136 Ga. 594, 71 S.E. 881 (Ga. 1911)
• Parties: WICKHAM v. TORLEY.
• Court: Georgia Supreme Court

71 S.E. 881

136 Ga. 594

WICKHAM v. TORLEY.

Supreme Court of Georgia

July 14, 1911

Syllabus by the Court.

The mere fact that a minor has neither parent nor guardian does not remove his disability and clothe him with the power to contract generally.

Nor does the fact that such a minor has been engaged as a workman in a shop and receiving his wages in such employment empower him to contract generally.

If a "minor receives property, or other valuable consideration, and, after arrival at age, retains possession of such property, or enjoys the proceeds of such valuable consideration, such a ratification of the contract shall bind him."

Under the facts of this case, the court erred in refusing to allow the plaintiff to reopen the case, after the evidence for the plaintiff was closed, and to introduce the defendant as a witness in order to prove by him facts which would have prevented a nonsuit.

Error from Superior Court, Chatham County; W. G. Charlton, Judge.

Action by Marie Wickham against Arthur Torley. Judgment for defendant, and plaintiff brings error. Reversed.

Marie Wickham brought an action against Arthur Torley, the substance of the petition now material being as follows Plaintiff in the early part of June, 1908, was living with S S. Sollee. Shortly thereafter the defendant, her brother entered with Sollee into the business of raising pigeons for market, and has continued in such business since that time. Soon after the defendant engaged in such business he requested the plaintiff to lend him $1,000, stating at the time that it was to be used for the purpose of increasing and improving the business in which he had engaged with Sollee. Plaintiff thereupon loaned the defendant $1,000, upon his agreement to repay such sum in April, 1909. Defendant expended a large portion of such borrowed money in improving and increasing the pigeon business in which he was engaged with Sollee, and the defendant failed and refused to repay the loan upon demand after its maturity. The defendant pleaded that he never borrowed the $1,000 from the plaintiff but he had received that sum from her as a gift; and he further pleaded, if it was not a gift but a loan, that he was a minor at the time he received the money, and was therefore not liable for its payment.

Upon the trial the plaintiff testified, in substance, as follows: "I loaned my brother, the defendant, $1,000 in June, 1908. He was 20 years old at that time. Our father and mother were both dead, and neither of us has ever had a guardian." He "wanted to go into the pigeon business with Mr. Sollee, and asked me to loan him $1,000. He then said that he would pay it back to me when he became 21 years old, on the 12th of April of the next year. This conversation took place in June of 1908, and I consented then to let him have the money. Mr. Sollee had my money, and he as well as my brother suggested that I make the loan, but my brother himself made the application for the loan. The latter subsequently informed me that Mr. Sollee had furnished him with the $1,000, my money. No writing was given me by my brother for the loan. After the loan was due, I made a demand on him for the money, but he has never paid me any of it. After this money had been loaned to my brother, there were pigeons and a pigeon business at the residence of Sollee. He bought pigeons. They appeared to be making a lot of improvements around the place and building a new pigeon loft. This business of making improvements and building the pigeon house continued while I remained there, which was until August 1908. Mr. Sollee and my brother were in business together, and that's why my brother asked me to lend him the money. He wanted to go in business with Sollee. *** I saw certain improvements going on around the place, and I understood from the way he asked me to lend him the money, I thought probably that was what it was for. He told me he wanted to go in business with Mr. Sollee, and I presumed that these improvements were made with that money. *** After my brother came out to Mr. Sollee's, both Sollee and my brother told me that they were going into the business of raising pigeons. They said this before I loaned the money; and afterwards my brother said that he wanted to borrow the money to go into that business. I believe at one time while I was out there they had young pigeons. Before I loaned the money to my brother, he was working with the Seaboard Railway Company, learning to be a blacksmith, and was receiving $15 a month for his services." Helmy testified in behalf of the plaintiff that he worked on Butner's farm near Sollee's place, and was there frequently. He said: "I recall an occasion when pigeon roosts were hauled through Mr. Butner's place, but I don't remember the day. I saw them haul a wagonload of boxes, *** some kind of crates. I understand they were pigeon nests. A darkey was doing the hauling, and he drove up through Mr. Butner's cow lane, leading out through the road. I objected to his going through there, when Mr. Torley came up and asked me to let the wagon cut through the lane up to the house, stating that it would ruin these boxes to get wet. Upon the request of Mr. Torley, I allowed the boxes to go through. *** All that I have heard Torley say was that he was raising pigeons, and raising some to sell. He then told me he had made away with some of the pigeons, and only saved a few for his own use. This conversation occurred last fall or summer. [The trial was in April, 1910.] He did not say they were for the business, only for pigeon nests. *** Mr. Torley did not tell me what his interest, if any, was, or whose pigeons they were. When he spoke about anything, it was about his doing so and so, and generally said 'we' did so and so. I don't know who 'we' was. I could not say who he had been talking about. Sometimes I would say, 'How are you getting along about the pigeon business?' and then he would say, 'We are doing nicely.' I could not pretend to say how long ago that was. I do not remember."

Upon the conclusion of the evidence for the plaintiff, the defendant moved for a nonsuit. "Before the judgment of the court was rendered upon said motion, plaintiff moved the court that she be permitted to introduce, for the purpose of avoiding the nonsuit, her brother, the said defendant, and then offered to show by said defendant the following facts (1) That said defendant was now the owner of the property for which a large portion of said $1,000 had been paid. (2) That he was now in the possession of that property. (3) That he was also in possession of a large portion of the money that had been loaned to him by plaintiff. (4) That he at the time the money was loaned was sui juris. The court, after argument, entered its judgment awarding...