131 Va. 447 | Va. | 1921
delivered the opinion of the court.
According to the record the above grounds of defense were stated and the issues made up in September, 1917. Proceedings, however, were stayed because the defendant was in the military service of the United States and the trial was not had until July, 1920. At the trial the defense that “the note was without consideration and was not
The defendant was eighteen years of age when the note was executed, and twenty-six at the trial. He was examined as a witness in his own behalf, and on cross-examination he stated that he was not relying on the defense of infancy and knew nothing about the plea being filed. He was then asked the following questions: (1) “You personally would not have filed any such plea?” and (2) “Do you want to withdraw the plea of infancy in this case?” Answers to these questions were excluded on motion of his counsel, and the plaintiff excepted. The bills of exception show that the answer to question one was “that he would not have filed such plea,” and to question two was “that he wanted to withdraw the plea of infancy.” The trial judge seems to have been satisfied that the witness did not understand the meaning and effect of withdrawing the defense of infancy; that he meant to insist that the amount advanced was a gift and not a loan, and that payment was never to be enforced, but did not understand that the withdrawal of the defense of infancy would cut him off from making this defense. Hence the following colloquy between the court and the witness:
“The Court: Your counsel has put in this case a plea that this transaction is not binding and should not be enforced because you were under age when it was given. Do you want to put that plea out of the case and abandon it ?
“Witness: I do not thoroughly understand this.
“The Court: Do you stand by the action of your counsel as to your case here and to manage it for you ?
“A. Yes, sir.
*452 “The Court: He is authorized to act for you and put in any defense that he thinks proper?
“Witness: Yes, sir.”
The trial court was of opinion that the defendant had the right to withdraw his defense of infancy, if he so desired, but that this right should be exercised understanding^ and in the regular way and not by cross-examination when the witness could not consult his counsel and have the subject fully explained to him, and hence determined to give him this opportunity. This phase of the case is presented in the record as follows:
“The Court: The jury may disregard that statement of the witness, that he did not rely on the plea of infancy. As a matter of fact that plea has been filed here, but if he wants to withdraw it and instructs the court to withdraw it from the case, the court will allow it to be stricken out. Until he does that the court will not.
“X. Do you want to withdraw the plea of infancy in this case?
“The Court (to the defendant): You may retire with your counsel and see whether you want to continue your case or to abandon it, after you have conferred with him.
“Memo: The defendant leaves the witness stand and, in company with his counsel, mother and brother, Warfield, retired to the judge’s room, and in a few minutes returned into court.
“The Court: Is the plea to go out or to stay in, Mr. Ott?
“Mr. Ott: The plea stays in.
“The Court: Yes, sir.” (Mr. Ott was counsel, for the plaintiff.)
The witness was then told to stand aside. The foregoing action of the trial court is excepted to on the ground that
One of the pivotal points in the case was whether the board and tuition which the plaintiff’s intestate had furnished the defendant, were necessaries, and whether the defendant was already sufficiently supplied. Much evidence on this subject was introduced by the defendant, and there was ample room for different conclusions to be drawn therefrom by reasonable men. Under these circumstances the court gave to the jury, on the motion of the defendant, and over the objection of the plaintiff, the following instruction:
“The court instructs the jury that, generally speaking, a minor is not liable on his contracts. This rule is subject to the exception that he is personally liable for a debt created for necessaries, but that which the expense of a common school education would be recognized in most cases as a necessary expense, yet the sending of a boy to a distant academy, or boarding school, when there was a good public school and high school convenient to his home, could not be so regarded under the evidence in this case; and, therefore, if the jury believe from the evidence that the note in suit was given for money laid out or expended by John D. Bear in sending the defendant to the Randolph Macon Academy, a boarding school * at Front Royal, the Elkton graded and high school being convenient to his home, they cannot consider such expenditure by John D. Bear as one made for necessaries, and they must find for the defendant.”
“The province of the court and of the jury in solving the question of necessaries involves a. proposition of considerable nicety, and one which is not always as clearly and definitely stated as it might be. The rule, having regard particularly to the latest cases, seems to be this: It is for the court to determine, as a matter of law, in the first place, whether the things supplied may fall within the general classes of necessaries, and if so, whether there is sufficient evidence to warrant the jury in finding that they were necessary. If either of these preliminary inquiries be decided in the negative, it is the duty of the court to nonsuit the plaintiff who seeks to recover from the infant. If they be decided in the affirmative, it is then for the jury to determine whether, under all the circumstances, the things furnished were actually necessary to the position and condition of the infant, as well as their reasonable value, and whether the infant was already sufficiently supplied.”
The statement of the note is abundantly supported by authority, both English and American, and also commends itself to our judgment as a correct statement of the law. Under the instruction given, the jury was left no discretion in the matter, but were obliged to find a verdict for the defendant.
For the error in defendant’s instruction hereinbefore discussed, the judgment of the trial court will be reversed, the verdict of the jury set aside, and the case remanded for a new trial, not in. conflict with the views hereinbefore expressed.
Reversed.