101 Me. 581 | Me. | 1906
The plaintiffs sold and delivered to the defendant merchandise (boots and shoes) to the amount of $1,000. The sale and delivery were upon credit, but there was no stipulation that the title to the merchandise should remain in the plaintiffs until payment, and no fraud is showq ; hence the title passed to the defendant with the delivery of the merchandise to him. At the time of the sale and delivery the defendant was a minor .under the age of. twenty-one years, though he was engaged in business as a retail trader and purchased this merchandise to sell again in his business. He sold part of the merchandise before he came of age and continued selling from it after coming of age and had some of it in his store at the time of the attachment in this action begun after he was of age. He has never ratified his contract in writing. The action is upon one count only, that upon account annexed for merchandise sold and delivered. The defendant pleaded his infancy in bar.
The plaintiffs concede that as to the merchandise sold by the defendant before he came of age his infancy is a bar, since as to that there was no ratification in writing after coming of age as required by the statute, E. S., ch. 113, sec. 2. They contend, however, that as to the merchandise sold or retained by him after attaining his majority, he is liable as upon an implied promise then made by him
If, during his minority, the defendant had paid for the merchandise and was now seeking to recover back the money so paid on the ground of his infancy when the contract was made, he would be repudiating the contract and would be obliged to restore the consideration (the merchandise) before such repudiation could be allowed. The statute would not avail him. Hilton v. Shepherd, 92 Maine, 160. This case, however, is entirely different. The contract of sale was completely executed by the unconditional delivery of the merchandise. The defendant’s neglect or even refusal to pay the agreed price does not rescind that transaction any more than if he had given his promissory note for the price and failed to pay the note when due. The merchandise became the defendant’s property upon the unconditional sale and delivery to him, and it all remained his property though he failed or refused to pay for it.
After all is said that can be said in support of the plaintiffs’ contentions, the fact remains that this action is based solely upon the defendant’s promise to pay made while he was an infant. The action is to enforce that promise and nothing else. There is nothing else to be enforced. The sale was made, the goods were delivered, the property in them passed to the defendant. The only thing left to be done or enforced was the defendant’s contemporaneous promise to pay for them.
Unfortunately for the plaintiffs that promise or contract to pay was made by the defendant while a minor. Even at common law a
-The only two exceptions named in' the statute also show its application to this case. The statute provides that it shall not apply to a contract made by a minor (1) for necessaries, or (2) for “real estate of which he has received the title and retains the benefit.” It seems a necessary inference that the statute does apply to a contract made for other kinds of property (not necessaries nor real estate) “of which he has received the title and retains the benefit.” Exoeptio probat regulam. The rule is stated and the exceptions are stated. The contract in this case is not within the exceptions. It is. therefore within the rule of the statute.
One other argument of the plaintiffs remains to be noticed. Upon the attachment of his property in this action the defendant signed a bond in the usual form for a release of the attachment. We find nothing in that instrument indicating a ratification of the original contract upon which the action is based.
The plaintiffs finally urge the hardships of this construction of the statute upon parties who in good faith have sold valuable
In view of many judicial opinions cited contra to this, including some in this state, it should be noted in conclusion that in none of them was the effect of this or a similar statute involved, and hence they are not in point. No decision of this court since the enactment of this statute is at variance with our decision here.
Judgment for the defendant.