158 A.D. 900 | N.Y. App. Div. | 1913
Jenks, P. J., Carr, Rich, Stapleton and Putnam, JJ., concurred.
The following is the opinion delivered at Special Term:
The preliminary objections raised by the defendant must be overruled. (Code Civ. Proc. § 416; Daly v. Amberg, 126 N. Y. 490.) The plaintiff claims that the defendant Spoon made a contract with him and that the plaintiff duly performed such contract upon his part and that the defendant Spoon only partially performed and later violated the contract upon his part. Plaintiff alleges that defendant was of full age and defendant Spoon, while not denying the fact of entering into a contract with the plaintiff, merely says that he was a minor at the time of making the contract, and, therefore, he should receive back from the corporation the amount he paid for the stock of the corporation. The purchase of the stock of the corporation was only a part performance on the part of the defendant Spoon of the contract which the pláintiff alleged he entered into with the defendant. The purchase of the stock was not the result of a dealing between the corporation and the defendant Spoon, but was an act on the part of the defendant Spoon which he had agreed with the plaintiff to perform as part and parcel of an agreement with the plaintiff. The validity of the purchase of this stock must be judged by the agreement made between the defendant Spoon and the plaintiff and their respective acts thereunder. Under all the circumstances justice requires a full and complete investigation of the rights of the parties concerned, and in order that such full and complete investigation may be had, it is necessary that a court of equity should intervene and that is all that plaintiff asks in this case. The cases cited by the learned counsel for the defendant do not apply to the question. No rule of law has ever permitted an infant to avoid a contract, of which he has enjoyed the benefit, and recover back the consideration paid on the attainmént of his majority. (Crummey v. Mills, 40 Hun, 370; Medbury v. Watrous, 7 Hill, 110.) It has become the settled law in this State that the privilege of infancy may be used as a shield to protect the infant and not as a sword to inflict injuries upon another. If an infant has had the benefit of a contract sought to be rescinded by him, he must account for the benefit, or return its equivalent. (Rice v. Butler, 160 N. Y. 578; Mutual Milk & Cream Company v. Prigge, 112 App. Div. 652.) Kent, in his Commentaries (Vol. 2, p. 240), says: “If an infant pays money on his contract and enjoys the benefit of it