180 P. 172 | Utah | 1919
Frank Blake, an infant, by T. W. Blake, his guardian ad litem, brought this action against the defendant to recover the value of a certain pony, harness, and buggy. Among other things, it is in substance alleged in the complaint that the plaintiff is an infant; that on a day named he and the defendant entered into an agreement whereby he agreed to sell and deliver to the defendant a certain pony, harness, and buggy at the agreed value of $150, for which defendant agreed to deliver to plaintiff 3,000 shares of the capital stock
, The defendant filed an answer to the complaint in which he in effect denied all of the allegations thereof. He also set up as a part of his answer an affirmative defense, which; however, in view of the assignments of error hereinafter referred to, it is not necessary to mention further.
The case was submitted to a jury, which, under the instructions of the court, returned a verdict in favor of the defendant. Judgment was entered on the verdict, and the plaintiff appeals.
The first assignment of error relates to the exclusion of certain evidence offered by the plaintiff. The defendant denied the value of the pony, harness, and buggy as
It is next insisted that the court erred in permitting the defendant to show the value of the Deer Bidge Mining Company’s stock. The assignment is based upon the
It is nest assigned as error that the court erred in charging the jury. The court charged as follows:
“You are further instructed that it is the policy of the law to shield or protect an infant from the improvidence incident to his youth and inexperience, hut not to debar him from the privilege of contracting, or to permit him to depart from the principles of common honesty. You are further instructed that, if you believe the contract in question was a fair and reasonable contract when entered into, and if ¿he plaintiff has parted with, or is unable to return, the consideration he received, or if .the property received by him cannot be restored by him, he is not entitled to disaffirm his contract. In other words, if you believe that the contract in evidence was fair and reasonable, and was free from any fraud or bad faith on the part of the defendant, and if you further find that the mining stock traded to the plaintiff by the defendant is now worthless, the plaintiff is not entitled to recover in this action.”
Our statute (Comp. Laws 1917, section 3956) relating to the right of minors to disaffirm their contracts reads as follows :
“A minor is bound not only by contracts for necessaries but also by his other contracts, unless he disaffirms them before or within a reasonable time after he attains his majority and restores to the other party all money or property received by him by virtue of said contract and remaining within his control at any time after attaining his majority.”
As we view it, the instruction is in direct conflict with the foregoing statute. The court charges the jury that, if the contract of exchange was ‘ ‘ fair and reasonable * * or if the property received by him [the minor] cannot be restored by him he is not entitled to disaffirm the contract, ’ ’ and, further, if the mining- stock “is now worthless,” plaintiff cannot recover in the action. The right of an infant to disaffirm his contract does not depend upon whether it was fair and reasonable. The vice of the charge, therefore, lies in the statement that, if the contract was fair and reasonable, the right on the part of the infant to disaffirm is lost. The right of an infant to disaffirm his contract'does not depend on whether
Nor is it the law that, if an infant cannot or does not restore what he received under the contract he has forfeited his right to disaffirm. We know of no decisions
“The plaintiff offered in writing to return the team. This, in the absence of an acceptance, was equivalent to the actual tender of the property. But he disposed of the horses six weeks later, and it is said that, because of not keeping the tender good, he should he defeated in this action. Disaffirmance is one thing and restoration of property quite another. The minor may disaffirm before he attains the age of 21 years. Childs v. Dobbins, 55 Iowa, 205 [7 N. W. 496], He is only required by the statute to restore the money or property received by virtue of the contract ‘remaining within his control at any time after attaining his majority.’ As stated, he ceased to be the owner of the team before becoming of age, and thereafter was not in control of anything received from defendant. There was then nothing in his keeping to restore.”
In Gray v. Grimm, 157 Ky. 603, 163 S. W. 762, in speaking of the duty imposed by law upon an infant in disaffirming his contract, it is held:
“Upon disaffirming a contract, the infant must restore what he*164 has received under the contract, if he still has it; hut he is not required to restore what he has received under the contract where he has wasted or spent it.”
In White v. New Bedford Cotton Waste Corp., 178 Mass. 20, 59 N. E. 642, it is held:
“An infant does not lose his right to disaffirm a contract because he cannot put the other party to the contract in statu quo.”
To the same effect is Gage v. Menczer (Tes. Civ. App.) 144 S. W. 717, and Wuller v. Chuse Grocery Co., 241 Ill. 398, 89 N. E. 796, 28 L. R. A. (N. S.) 128, 132 Am. St. Rep. 216, 16 Ann. Cas. 522.
Moreover, it is not the law that an infant may not disaffirm and recover if the property he has received has become worthless, as the court charged the jury in this case.
In view of what has been said, it is "not necessary to dwell upon the assignments relating to the court’s refusal to charge as requested. Those requests merely’ stated the law as we have outlined it in different ways. The court, no doubt, clearly erred in refusing the requests in which the law is stated as indicated herein.
For the reasons stated, the judgment is reversed, and the cause is remanded to the district court of Salt Lake county, with directions to grant a new trial; appellant to recover costs on appeal.