Kelly v. Halox, 256 Mass. 5

256 Mass. 5 | Mass. | 1926

Wait, J.

The exceptions saved by the defendant cannot be sustained.

It is the established law of this Commonwealth that a minor who disaffirms a contract need not put the other party thereto in statu quo before beginning an action for the recovery of what he has parted with. White v. New Bedford Cotton Waste Corp. 178 Mass. 20, 24, and cases cited.

If the contract is one of partnership, it is true that the minor’s interest in the funds of the partnership is said to be subject to the claims of firm creditors, Godfrey v. Mutual Finance Corp. 242 Mass. 197, 200, Moley v. Brine, 120 Mass. 324, Page v. Morse, 128 Mass. 99, Pelletier v. Couture, 148 Mass. 269; but none of these was a case where the issue was presented between a firm creditor and the minor, and so full authority for the proposition stated. It is not necessary to decide the matter here, because the evidence fails to disclose that there were any firm creditors, or that any diminution of the assets of the short-lived partnership had taken place. The evidence which the defendant sought to introduce in regard to McCarthy was not competent upon the issues presented by the pleadings, which merely put in issue the making of the alleged contract, the minority of the plaintiff, the amount paid in, the disaffirmance, and repayment by the defendant. Had it been admitted, it would have disclosed that McCarthy was not a firm creditor, but either the possessor of a claim against the plaintiff and defendant as individuals, or else a copartner with them in another firm seeking a dissolution of that firm and the distribution of its asset's. Manifestly the matter was res inter alios in this case.

The judge was acting properly in refusing any offer of substantive testimony for the defence during the cross-examination of the plaintiff and before any opening of the defendant’s case. It was in his discretion. Ellis v. Thayer, 183 Mass. 309. He could not rightly direct a verdict for the defendant, for there was evidence of the contract alleged, of its rescission, of the amount paid in, and of the minority, a prima facie case for the plaintiff. Knudson v. General Motorcycles Sales Co. Inc. 230 Mass. 54. Nor could he give the instructions requested. For reasons already stated, they were inapplicable to the case before the court.

The defendant rested at the close of the plaintiff’s case. There was then no evidence before the jury which contradicted the plaintiff’s claim. The facts as alleged were practically admitted. The general denial put a burden of proof upon the plaintiff, and although a verdict rarely can be directed in favor of a party who has the burden of proof, McDonough v. Metropolitan Life Ins. Co. 228 Mass. 450, 452, here, however, the judge was justified in the order. Parsons v. New York, New Haven & Hartford Railroad, 216 Mass. 269.

No argument has been addressed to us in regard to any distinction to be made between the payment of $500 to the defendant and the deposit of $100 to the credit of the partnership. Dusopole v. Manos, 194 Mass. 355. The trial judge’s attention was not called to it. It is not now open to the defendant, and we do not consider it. The order must be

Exceptions overruled.