D. H. Holmes Co. v. RenaD. H. Holmes Co. v. Rena
“The issue presented by this appeal is whether a minor who has purchased and received clothing and accessories may, without returning them, even after her emancipation by marriage several months later, escape liability for payment of their priсe on the ground of her general contractual incapacity at the time the purchases were made.”
D. H. Holmes Co., Ltd., is a Louisiana corporation which operates a large department store in New Orleans. Mrs. Bettie J. Rena, now the wife of Charles Salles, during the months of October and November, 1944, bought, on open account, from the plaintiff corporation merсhandise priced at $999.34, consisting of $451.79 for dresses, $355.96 for accessories (such as neckwear, underclothing, cosmetics, gloves, etc.), $44.90 for jewelry, $8.61 for lunches and candy, $68.20 for items such as stationery, and $59.88 for men‘s clothing. She was only seventeen years of age at the time and had not been emancipated. She was married about eight months later and thus became emancipated by mаrriage. Her father is living, but we gather from the record that while he lives out of the City of New Orleans, she came to the city to earn her living and now lives here.
When the defendant failed to pay for the merchandise which she had purchased, plaintiff corporation filed this suit alleging that the defendant is “a person of the full age of majority * * *.”
Based on the fact that, at the time the purchases were made, she was a minor and had not been emancipated, and that even when the suit was filed, although it was alleged that she was “a person of the full age of majority,” she had not actually arrived at the age of majority, being only emancipated as the result of her marriage, defendant filed an exception of no right of action. In the District Court this exception was referred to the merits, and defendant then filed answer in which she admitted having made the purchases and in which she also denied liability, specially pleading “her minority and legal incapacity.” In her answer she also averred that the purchases were made “in defendant‘s maiden name” and when she was “an unmarried, unemancipated minor.”
After a trial on the merits, there was judgment in favor of defendаnt. D. H. Holmes Co., Inc., has appealed.
A determination of the legal issues which are presented requires an understanding of certain facts which were shown by the evidence, so that we have concluded that it is best to do as the District Judge did, refer the exception of no right of action to the merits, and take into consideration all of the facts which were shown by the evidence. Most of those facts we have already stated.
Plaintiff corporation asserts that for three reasons the defendant, although a minor seventeen years of age at the time the purchases were made, may now be held liable. We quote those reasons from the brief filed on behalf of plaintiff-appellant:
“1. Appellee’ is liable for the price of her purchasеs because they were ‘necessaries‘.
“2. In the event that this court should hold that the contract between appellant and appellee was not an enforceable one for necessaries, appellee has ratified it by her failure, subsequent to her emancipation by marriage some eight months later, to return the articles purchased by her during her minority.
“3. Under the provisions of
Defendant relies principally on
“Lesion needs not be alleged to invalidate such contracts as are made by minors, either without the intervention of their tutors, or with such intervention, but unattended by the forms prescribed by law. Such contracts, being void by law, may be declared so, either in a suit for nullity or on exception, without any other proof than
In answer to each of the three contentions made on behalf of plaintiff, defendant has this to say: As to the first contention that the articles purchased were necessaries and that, therefore, the minor may be held liable for the purchase price, defendant says that the very article of the Code on which plaintiff relies —
Counsel say that there is no proof whatever in the record on these questions, and counsel also insist that even if it had been shown that the articles were necessaries and were not furnished by the father, still there would be no liability under
The second contention of plaintiff — that by retaining the articles after her emancipation by marriage, defendant ratified the purchases and thus made herself liable, although the contract may not otherwise have been binding upon her — is based on the last paragraph of
“In all other cases, the minor is incapacitated from contracting, but his contracts may be rendered valid by ratification, either expressed or implied, in the manner and on the terms stated in this title under the head: Of Nullity or Rescission of Agreements.”
In answer to this contention, counsel for defendant say that even if ratification may result from the retention of such perishable items as wearing apparеl, accessories, etc., there is no proof in the record to show that any of the said articles remained in the possession of the defendant eight months after their purchase when she was emancipated by marriage, and that, therefore, it has not been shown that it was within the power of the defendant to return the articles. And counsel say that it requires more than the mere pаssive retention of such perishable movables to show ratification; that there must be some affirmative act indicating a desire to retain the benefits of the purchases, or there must be the retention of nonperishables, such as lands or buildings.
The third contention of plaintiff is that under
“If, in а contract with an incapacitated person, or in a contract void for want of form, entered into with any one for the benefit of such incapacitated person, any consideration be paid or given, and the contract be afterwards invalidated on account of such incapacity or want of form, the consideration so paid or given must be restored, if it wаs applied to the necessary use or benefit of the incapacitated person.”
“When minors, persons under interdiction, or married women are admitted, in these qualities, to the benefit of restitution against their engagements, the reimbursement of what may have been paid, in consequence of those engagements, during minority, interdiction, or marriage, can not be required of them, unless it be proved that what was paid accrued to their benefit.”
This contention is very similar to the second — that the purchases have been ratified by retention of the articles, and in answer to it counsel for defendant say, first, that there is no proof that the articles are still in existence and in the possession of defendant and, therefore, no proof that they can be “restorеd“, and second, that there is no proof that the articles purchased were “applied to the necessary use or benefit of the incapacitated person.”
There is between counsel an irreconcilable difference on the question of the effect of
“Our conclusion, therefore, is that a minor is not incapable to contract, but that he is rendered incapable to injure himself by contracting, and if in the instance before us, the jury had found that the engagement the defendant entered into, had been useful and advantageous to him, we should have felt it our duty to enforce it.”
This decision, rendered prior to the year 1825, was based on the Code of 1808. It is argued that the change brought about by Article 1860, which remains in our present Civil Code as
Since the present article (1866) is essentially the same in this regard as the Code of 1825, it is argued that the rule now is, or should be, that, in such a case as this, the mere showing of minority without proof of аuthority is sufficient to establish the nullity of such a contract.
This view is expressed in an article entitled, “The Contractual Capacity of the Minor in Louisiana,” 20 Tulane Law Review, page 574. The author of the article recognizes the fact that in spite of the codal change in 1825, there have been, since that time, many later cases which, “by misinterpreting the Southworth case, * * * have evolvеd in dieta a rule of partial capacity which states that the minor will be bound for his contracts when they prove advantageous or beneficial to him.”
The author cites the following cases: Guirot v. Guirot‘s Syndics, 3 Mart., N.S., 400; Ducrest‘s Heirs v. Bijeau‘s Estate, 8 Mart., N.S., 192; Succession of Johnson, 4 La. Ann. 253; James Co. v. Alford Co., 15 La. Ann. 506; Commercial Credit Co. v. Pool, 2 La. App. 525.
[1] Our own view on the matter is that there is no possibility of following both the express provisions of
[2-4] If the contract was a nullity, then the provisions of
In Riva‘s Heirs v. Bernard, 13 La. 159, as expressed in the second syllabus, the Supreme Court held that:
“Where the ratification of a sale, or of certain proceedings, is relied on, the burden of proof is on the party alleging it, and fаcts must be established from which the ratification necessarily results, when there is no positive proof.”
In International Accountants Society v. Santana, 166 La. 671, 117 So. 768, 770, 59 A.L.R. 276, where it was contended that a contract, which had been made by a minor, had been ratified after reaching the age of majority, the Supreme Court said:
“The burden of proving the ratification or voluntary execution of the contract is on the plaintiff.”
And in 45 Corpus Juris Secundum, Infants, § 117, it is stated thаt:
“* * * the party who asserts that a contract is binding has the burden of proving matters in avoidance of the infancy asserted, * * *.”
“A person seeking to recover for necessaries furnished an infant has the burden of proving that the things furnished were necessaries suitable to the infant‘s station and circumstances; * * *.”
We next consider the suggestion that even if the contract was null when it was entered into, it was rаtified by the retention of the articles purchased after the minor was emancipated by marriage. It is true that
In the former of these two cases the defendant, while a minor, executed notes which were sued on. The defense was minority at the time the notes were executed. It was contended that even if the maker was a minor when the notes were executed, ratification had resulted from the retention, after arriving at full age of majority, of the property for which the nоtes were given. The Court had some doubt on the question of whether the defendant was a minor when the notes were given, but held that assuming that the defendant was a minor, the contract had been rendered valid by ratification. But the evidence showed that ‘the notes had been given for improvements on land, or possibly for the land itself, and that from these’ improvements or from the land the maker of thе notes had continued “to derive annual revenues.” In other words, after arrival at majority there was a continued receipt of benefits from the contract and a continued retention of improvements to realty, if not of the realty itself.
In Succession of Sallier, as stated by counsel for D.H. Holmes in their brief, “certain heirs sought to annul succession proceedings, and asked for a partition. The court found that, after coming of age, the plaintiffs had receipted for sums received for them by their tutor, and that no offer to return them had been made.” After the minors reached their respective majorities, they brought suit to annul the succession proceedings. The Supreme Court held that they had ratified the proceedings because, during more than ten years after the youngest of them had bеcome of age, they had “receipted to their mother for all sums she had received for them * * *,” and that these sums for which they had receipted after attaining majority had been turned over to them as a result of those same succession proceedings.
In each of those cases there was an affirmative act after attaining majority which could be construed only as an intentional ratification.
[5] And it is obvious that such an intentional affirmative act is necessary. If
The word “ratify,” according to Webster‘s New International Dictionary, means: “To approvе; to sanction“. According to Black‘s Law Dictionary, Deluxe Edition, it means: “To approve and sanction.” In one of the cases cited in Black‘s Law Dictionary there is language illustrating the view which we have that the ratification does not result unless it is made with an intention and with knowledge of the facts. First Nat. Bank of Enid, Okla., v. Alton Mercantile Co., 8 Cir., 18 F.2d 213, 215. There the Court said that in order that ratification result the act relied on must have been dоne “with knowledge of all material facts“.
In International Accountants Society v. Santana, supra, the Supreme Court held that there had been no ratification even though the defendant, after attaining majority, had made certain payments on account of the contract which he had entered into during minority.
In reaching that conclusion the Supreme Court approved the decision rendered by this Court in the same case, reportеd in 7 La. App. 594, in which we cited many cases, from one of which, Hamilton v. Hodges, 30 La. Ann. 1290, we quoted the following statement, which is typical of what was said in all of them:
“The ratification of a contract can only be adduced from facts, when those facts evince clearly and absolutely the intention to ratify.
“The validity of any ratification — express or tacit — can legally rest but upon a previous and full knowledge of the contents of the unauthorized or defective acts to which the ratification is to impart a posthumus and retroactive validity.”
In Kothe v. Von Behren, La. App., 5 So.2d 571, 573, we again discussed the question of ratification and again held that it was not shown that the acts performed after attaining majority had indicated an intention of ratifying the contract which was originally invalid. Following this finding, we said:
“On the whole, we are of the opinion that the evidence is insufficient to prove ratification. If it be sufficient to create a doubt, then the party against whom the ratification is claimed must have the benefit of the doubt.”
[6] We think that the same result must be reached on the third contention of plaintiff based on
Our conclusion is that the contract was null and produced no liability in the minor to pay the purchase price and that there is no proof of facts sufficient to show ratification.
[7] We conclude also that if the plaintiff has any rights against the minor resulting from the transaction, there is not included the right to claim the purchase price. That is all that is claimed in this suit.
The judgment appealed from is affirmed at the cost of appellant.
Affirmed.