Hoyt v. Wilkinson

57 Vt. 404 | Vt. | 1885

The opinion of the court was delivered by

Rowell, J.

An infant may avoid his contracts relating to personal property while under age and immediately. 1 Am. Lead. Cas. 258; Price v. Furman, 27 Vt. 268; Willis v. Twambly, 13 Mass. 204; Stafford v. Roof, 9 Cow. 626: Bool v. Mix, 17 Wend. 119, 132. The dictum to'the contrary in Farr v. Sumner, 12 Vt. 31, is not sound, although not without some support in the authorities.

But what was the effect of the avoidance and tender here rejoined ? It was,, as between the parties, nothing else appearing, in the language of Chief Justice Shaw in Boyden v. Boyden, 9 Met. 519, to “ annul the contract on both sides ab initio,” and to devest the plaintiff of title to the note, and reinvest him with title-to the horse. Willis v. Twambly; Badger v. Pinney, 15 Mass. 359; 1 Am. Lead Cas. 258, 259. Willis v. Twambly is exactly in point. There the plaintiff, a minor, had a non-negotlable note payable to himself, which he- exchanged with Cook for a worthless watch. The next day, under the direction of his father, he disaffirmed, the contract by tendering back the watch to Cook and' demanding the note, which Cook refused to deliver, and also to take the watch. Subsequently the maker of the note, on being informed of the transaction and receiving a discharge from plaintiff’s father, gave a new note in lieu of the old one, after which Cook passed the old note to B, assuring him it would be paid, and B brought suit thereon against the maker in the plaintiff’s name ; and it was held that the note ceased to be the property of Cook from the time the plaintiff disaffirmed the contract, and that the settlement made by the defendant when he gave the new note discharged him from liability on the old note. The case does not disclose what was done with the watch after it was tendered back, and no point was made of that by either court or counsel.

Price v. Furman is also much in point. There the minor tendered back the horse and demanded the property he had given in exchange for it, and on defendant’s refusal to receive the horse or to redeliver the property, the minor turned the horse loose into the highway and left it; but the court laid no stress on that fact, but said that when the contract was rescinded it could not be enforced, and that, on general principles, the minor could recover, as there had been an offer to return the horse, which was in his possession and under his control.

This is very analogous to the tender of specific articles in payment of a note or other contract, where a tender of the articles according to the contract vests the property in the ^promisee and discharges the debt; and the promisor is not bound to keep the property, nor to plead tmcore prist. Barney v. Bliss, 1 D. Chip. 399.

Plaintiff contends that it is fairly inferable from the rejoinder that the defendant continued to keep the horse for such a length of time and iu such a manner as to amount to a waiver of his avoidance, and an affirmance of the contract. But no such inference can fairly be drawn from the pleading. If plaintiff thought that point a good one, and desired to raise it, he should have sur-rejoined.

We find no error in the judgment below; but at plaintiff’s request, the same is reversed pro forma, and the cause remanded, with leave to plaintiff to replead on the usual terms.