300 Mass. 281 | Mass. | 1938
The plaintiff was born on July 20, 1909. On September 25, 1929, when he was two months more than twenty years old, he paid the defendant $300 for a course of instruction in elementary aviation, and received it. On February 27, 1930, he paid the defendant $1,300 for a limited commercial pilot’s course of instruction in aviation, and received it. On May 6, 1930, he entered into a contract with the defendant for a course of instruction as a transport pilot at a cost of $3,200, but during the month withdrew from the school and paid nothing. He attained his majority on July 20, 1930. On February 28, 1931, after receiving from the defendant a bill for a balance of less than $50 which it claimed as due, the plaintiff visited its attorney and denied liability, but said nothing about minority. He took no action by way of disaffirmance until July 11, 1931, almost a year after attaining majority, when he brought this action to recover the $1,600 which he had paid, with interest, on the ground that he was a minor at the time of the making of the contracts in question and had elected to disaffirm them. The judge found for the plaintiff, but the Appellate Division ordered judgment for the defendant. The plaintiff’s appeal brings the case here.
It is agreed that the contracts were made in New York, where the defendant’s aviation school was located, and that the questions raised in this case are governed by the law of New York.
The next question is whether as matter of law delay for nearly a year after majority before disaffirming the contracts was a ratification of them. It is to be noticed that the contracts were wholly executed, and that there is no evidence that an earlier disaffirmance would have benefited the defendant or saved it from harm. It is to be further noticed that the plaintiff has made no use of his education in aviation, which has been of no apparent benefit to him. His duty to disaffirm within a reasonable time after majority (Sternlieb v. Normandie National Securities Corp. 263 N. Y.
Lastly, the defendant contends that there could be no disaffirmance because the plaintiff could not return the instruction that he had received by virtue of the contracts. In New York, as in this Commonwealth, a minor who has lost or squandered what he received under the contract may nevertheless disaffirm it and recover what he paid or gave, or its value. Green v. Green, 69 N. Y. 553. Casey v. Kastel, 237 N. Y. 305, 314, 315. Kane v. Kane, 13 App. Div. (N. Y.) 544. McCarthy v. Bowling Green Storage & Van Co. 182 App. Div. (N. Y.) 18, 21, 22. Wyatt v. Lortscher, 217 App. Div. (N. Y.) 224, 227. Morse v. Ely, 154 Mass. 458. Gillis v. Goodwin, 180 Mass. 140. In principle he should be in no worse position where the nature of what he received is such that it cannot be returned. There are cases in New York, however, which are difficult to reconcile with the cases just cited, and which hold that a plaintiff suing to recover money paid while a minor for tangible property which he returns must allow for its depreciation while he had the use of it. Rice v. Butler, 160 N. Y. 578. Wanisch v. Wuertz, 79 Misc. (N. Y.) 610. Sparandera v. Staten Island Garage, Inc. 117 Misc. (N. Y.) 780. Egnaczyk v. Rowland, 148 Misc. (N. Y.) 889. Myers v. Hurley Motor Co. 273 U. S. 18. Creer v. Active Auto Exchange, Inc. 99 Conn. 266. Williston, Contracts (Rev. Ed.) § 238. Adams,
Order of Appellate Division for judgment for defendant reversed.
Judgment for plaintiff on the finding.