308 Mass. 502 | Mass. | 1941
This is an action of contract or tort in which the plaintiff, who sues by her next friend, is described as a minor. The Appellate Division of the Municipal Court of the City of Boston ordered the report of the trial judge, who found for the plaintiff in contract, dismissed. The defendant’s appeal from this order, presents the question whether there was error in the denial of the seven rulings of law that were requested by her.
There was no error in the denial of the first two requests
There was no error in the denial of the third request that, the plaintiff being a minor, there could be no contract between her and the defendant “in this situation.” The limits of legal capacity of minors to act in their own behalf were not established to defeat the enforcement of their rights. Bradford v. French, 110 Mass. 365, 366. In the case at bar no question of the right of the plaintiff to avoid any contract that she may have made with the defendant is involved. On the contrary, she is endeavoring to assert, through her next friend, rights that she says accrued to her by virtue of a contract. See Oliver v. Houdlet, 13 Mass. 237; Blood v. Harrington, 8 Pick. 552, 555; Guild v. Cranston, 8 Cush. 506; Smith v. Carney, 127 Mass. 179, 180; Mansfield v. Gordon, 144 Mass. 168.
Requests numbered 4 and 5 are obviously directed to a possible liability in tort, and the finding of the trial judge on the contract count of the declaration rendered them immaterial.
There was no error in the refusal to give the sixth request, to the effect that the sales act, so called, had no application. There was no evidence upon which it could be posited.
There was no error in the denial of the remaining request, that the evidence did not warrant a finding that the person who treated the plaintiff’s hair was the “servant of the defendant or one for whom she is liable.” There was evidence that the plaintiff and her sisters went to the defendant’s place of business for the purpose of having their hair treated, appointments having been made on the previous day. The plaintiff had been informed that one Remick, who had previously done some work on her hair, was “lo
Order dismissing report affirmed.