60 Ga. App. 149 | Ga. Ct. App. | 1939
On November 4, 1936, the Peerless Furniture Company sold to Othel Holland a certain described set of furniture for $89.50, and took a retention-of-title contract from Holland for the same. Holland paid $39.50 on the purchase-price, and then stopped payments. On December 31, 1937, Peerless Furniture Company foreclosed its conditional-sale contract under the Code, § 67-1601. After levy, Holland filed his affidavit of illegality, and alleged that at the time he made the purchase and at the time of the foreclosure he was a minor and' had never been emancipated; that the contract was subject to avoidance at-his discretion; and that he “now repudiates said contract and offers to return said furniture as identified in said contract to said owners thereof when they have placed him in status quo, that is when Peerless Furniture Company has refunded to affiant the sum of $39.50 which he has paid them under contract, and that he has repudiated and now repudiates said contract on the ground of infancy at the time of the contract.” Bond was given, his father signing the bond; and Holland now retains the property. The case proceeded to trial- on the issue as to minority, and, if a minor, whether or not he had been emancipated by his father. Evidence for the plaintiff was to the effect that at the time of the making of the contract Holland told the plaintiff that he was capable of making the contract and had a right to contract. The jury settled these issues in favor of the Peerless Furniture Company. In his motion for new trial the defendant excepted to certain charges by the court to the jury.
“All contracts made bjr an infant relating to personalty can be avoided during minority as well as after the infant has attained majority; and this right applies to executed as well as to executory contracts.” Gonackey v. General Accident &c. Assurance Corporation, 6 Ga. App. 381, 383 (65 S. E. 53). The contracts of infants are- not void, but are voidable at their election on coming of age, and during minority as to contracts relating tó personalty. A person, however, who is non sui juris can not retain the fruit of his contract and plead the exemption. Code, §§ 20-201, 20-202; Strain v. Wright, 7 Ga. 568; Harris v. Collins, 75 Ga. 97 (2);
Irrespective of whether or not, under the facts of this case, the defendant might be entitled, in an action brought for such purpose, to recover from the plaintiff the money paid, he can not hold the property bought and make the return to him of the money paid a condition precedent for its return: Particularly is this true
Judigmeni affirmed.