183 Mass. 317 | Mass. | 1903
Both parties being infants at the time of the contract, either could avoid it without a return of the consideration. But neither could avoid it in part. He must avoid it wholly if at all. And if the infant when avoiding the contract has in his hands any of the specific fruits, the act of avoiding the contract by which he acquired such property will divest him of all right to retain it, and the other party may reclaim it. Chandler v. Simmons, 97 Mass. 508, 514.
The plaintiff, who was the buyer, sought first to exercise his right to avoid, and brought this, action to recover the money; and if the defendant also had not been an infant, he would have had no defence upon the count in contract because the law would have implied a contract upon his part to refund the money. But the difficulty Avith the plaintiff’s case is that the defendant is meeting the plaintiff Avith a Aveapon like that used by him, to wit, avoidance of a contract on the ground of infancy. And while the infancy of the plaintiff is a shield to him, it does not prevent the defendant from relying upon his own infancy in turn as a shield to him. So far as respects the right of the defendant to take advantage of his own infancy, it is immaterial whether the plaintiff be an infant or an adult.
Can the plaintiff recover in this action the money paid by him to the defendant ? The defendant spent it before the plaintiff avoided the contract. His plea of infancy is a complete defence to the counts in contract. So the court ruled, and we do not understand that the correctness of this ruling is contested by the plaintiff. If at the time the plaintiff elected to avoid the contract the defendant had in his possession the same money which he received from the plaintiff, then, since by reason of the avoidance the defendant had no right further to hold it, the plaintiff perhaps might have maintained replevin, or, upon proper proceedings taken, have maintained trover as for a subsequent conversion.
The plaintiff contends that trover will lie even if, at the time he avoided the contract, the money had been spent. But one
There was therefore nothing tortious in any act of the defendant, with reference to the money, before the contract was avoided.
Nor has the defendant been guilty of any tortious act since, unless it be his failure to refund an equal sum to the plaintiff, but that failure at the most can be considered only as a breach of an implied contract, and this the law permits him to avoid.
To hold that, while for this failure to pay over under these circumstances he cannot be held in contract but.still can be held in tort, is to convert that which arises out of a contract into a tort, and to take away the shield which the law throws around the infant for his protection. Upon this theory, money lent to an infant might be recovered. The plaintiff finds himself where any one is likely to be who places money into the hands of an infant with the right to spend it as his own money, and the right has been exercised. Upon this general subject see Slayton v. Barry, 175 Mass. 513, and cases cited; Carr v. Clough, 26 N. H. 280.
The plaintiff relies upon Walker v. Davis, 1 Gray, 506, as decisive in favor of the right to maintain this action, but an examination of the case will show that the ground upon which the decision was based in no way conflicts with the conclusion to which we have come. In that case, which was trover for the conversion of a cow, .it appeared that the defendant, an infant, plied the plaintiff, who was an old man, with liquor until he became drunk; and then took advantage of the plaintiff’s incompetent condition to trade for a cow. The defendant took the cow and gave his note in payment. When the note became due, the plaintiff brought a suit upon it in which the defendant prevailed upon the plea of infancy. The plaintiff then brought the
Exceptions sustained.