41 S.E.2d 226 | Ga. | 1947
This case comes to this court on certiorari from the Court of Appeals, on the grant of which this court divided four to three. It is a suit at law by next friend for damages for personal injuries *761
in which suit the plaintiff by his petition sought to avoid the effect of an admitted accord and satisfaction by showing that at the time such agreement was made he was mentally incompetent, and has since been so adjudged, and that such condition has continued since the accord and satisfaction was effected. The petition does not allege that the defendant had knowledge of such mental incapacity of the plaintiff at the time the settlement was made. The trial court overruled a general demurrer to the petition, which judgment was sustained by the Court of Appeals. The pleadings are set forth in the opinion and dissenting opinion of the Court of Appeals, see Ga. Power Co. v. Roper,
1. "The contract of an insane person, a lunatic or a person non compos mentis, who has never been adjudicated to be insane, or a lunatic, or of unsound mind as prescribed by the Code, is not absolutely void, but only voidable." It is not until "After the fact that such person is insane, a lunatic, or non compos mentis has been established by a court of competent jurisdiction in this State and the affairs of such person are vested in a guardian," that "the power of such person to contract even though restored to sanity is entirely gone and such contracts are absolutely void, until the guardianship is dissolved." Code, § 20-206. See also, to the same effect, Hadden v. Larned,
This court, on the contrary, in American Trust Banking Co. v. Boone,
2. A contract of one who has not been adjudged mentally incompetent, but who is in fact insane at the time a contract is entered upon, can be repudiated by the incompetent unless it be expressly or impliedly thereafter effectively ratified. Where not subsequently ratified, the general rule is that the incompetent is required to make restitution of the benefits received under the agreement, so as to restore the parties as far as possible to their status quo. Fields v. Union Central Life Ins. Co.,
(a) An exception to the general rule exists with respect to cases at law, but not to cases in equity, and that is where the one seeking to avoid the contract, which has not been ratified by holding on to the benefits after sanity has been restored, shows that it is impossible for the incompetent by the reason of his poverty to make restoration of any of the benefits received. Strodder v. Southern Granite Co.,
(b) There is still another but different class of cases not dealing with voidable contracts by incompetents, procured without the knowledge of *763
the party subsequently seeking to avoid the contract. In these cases the court is careful to point out that the contract is treated, not as a voidable contract procured by fraud, but as a complete nullity, just as if it had never been signed, and there being no contract, no restitution is required thereunder. Georgia Southern Florida Ry. Co. v. Adeeb,
3. Under the foregoing rulings, restitution was required, or good reason shown why it was impossible to restore the status quo.
(a) The plaintiff alleged "upon information" that, "on or about February 7, 1945, he was paid a small amount of money, approximately forty ($40.00) dollars, by the defendant, and at that time he signed some paper which he takes for granted was a release of all claim against the defendant company:" and further set forth that, "if he in fact received any sum of money from the defendant company, he does not now have the same, and that he is unable to restore or pay the same back to the defendant company for the reason, as stated, that he does not have any money, and if the same was ever paid over to him it has been spent." (Italics ours.) These averments were insufficient to avoid a compliance with the rule of law as to restoration hereinbefore indicated, since they go merely to the effect that he did not now have the particular money actually received, and did not have any "money" at the time the petition was filed with which to make restitution; but altogether failed to allege his inability to make such restitution; but to set forth any facts with reference to his financial capacity which would render impossible such restoration of the $40. To merely show that he did not have the original currency, and did not happen to have that amount of actual cash on hand when the suit was filed, is not sufficient to excuse a failure to restore the status quo.
Judgment reversed. All the Justices concur, except Wyatt, J., who dissents, and Duckworth, P. J., and Candler, J., who dissent from the third division of the opinion and from the judgment.