McCormick v. . Crotts
153 S.E. 152
N.C.
1930
Check Treatment
Stacy, C. J.,

after stating the case: As the defendant was at liberty to avoid the contract in question at any time during his minority, or upon arrival at full age (Collins v. Norfleet-Baggs, 197 N. C., 659), we fail to see how he can be estopped from asserting this right by his own acts in filing answer and replevying the property in question рrior to the appointment of a guardian ad litem. Hicks v. Beam, 112 N. C., 642, 17 S. E., 490; Tate v. Mott, 96 N. C., 19, 2 S. E., 176. Even if the matter had gone to judgment, without the appointment of a guardian ad litem and during the minority of the defendant, he. would still have had his remedy. Hicks v. Beam, supra.

Under the principles announced in Collins v. Norfleet-Baggs, supra, and other cases, the defendant is entitled to disaffirm the contract and recover the consideration paid by him, with the limitation that he must restore whatever part he still retains of that which came to him under the agreement, ‍​​‌​​​‌‌​​​‌​‌‌​​‌‌‌‌​‌​​‌​‌‌​​​‌​​​‌​​‌​‌​‌‌‌​‌‍but he is not required to account for the use or depreciation of the property while in his possession, or fоr its loss, if squandered or destroyed, for this is the very improvidence against which the law seeks to protect him. Hight v. Harris, 188 N. C., 328, 124 S. E., 623; Morris Plan Co. v. Palmer, 185 N. C., 109, 116 S. E., 261; Cole v. Wagoner, 197 N. C., 692; Millsaps v. Estes, 137 N. C., 535, 50 S. E., 227; 14 R. C. L., 238.

The judgment, therefore, shоuld be that the defendant recover of the plaintiff the sum of $298.20, the amount paid under the contract, with interest from 6 October, 1925, and that the plaintiff have and recover the property in question in its present condition, but no more. Morris Plan Co. v. Palmer, supra.

Nor would it seem that the liability of the sureties on the forthcoming bond should be held to be in excess of the defendant’s liability thereunder. The obligation of the sureties on the redelivery bond of the defendant in the instant case is to answer for any default of the principal in said bond, to the extent of $500, fоr which the infant defendant may be adjudged legally bound. Note, L. R. A., 1917 A, 1191.

According to the'terms of the bond (which is not in the exact language of the statute, C. S., 836), it is stipulated “that if the said prop *667 erty be returned to tbe defendant it shall be delivered to the plaintiff, with damages for its detеrioration and detention, together with the costs of the action, if such delivery be adjudged and can be had, and if such delivery cаnnot for any cause be had, that the plaintiff shall be paid such sum as may be recovered against the defendant for the value of the property at the time of the wrongful taking or detention, with interest thereon, as damages, for such taking and detention, together with the cost of this action.” Garner v. Quakenbush, 188 N. C., 180, 124 S. E., 154; Hendley v. McIntyre, 132 N. C., 276, 43 S. E., 824; Trust Co. v. Hayes, 191 N. C., 542, 132 S. E., 466; Motor Co. v. Sands, 186 N. C., 732, 120 S. E., 459; Randolph v. McGowans, 174 N. C., 203, 93 S. E., 730; Wallace v. Robinson, 185 N. C., 530, 117 S. E., 508.

But the defendant, still being 'a minor, may disaffirm ‍​​‌​​​‌‌​​​‌​‌‌​​‌‌‌‌​‌​​‌​‌‌​​​‌​​​‌​​‌​‌​‌‌‌​‌‍this obligation, as well as the original one. Hight v. Harris, supra. Hence, the extent оf the defendant’s legal liability is to return so much of the property which came to him under the contract as he still has, without acсounting for its use or depreciation while in his possession. Collins v. Norfleet-Baggs, supra. The plaintiff is entitled to judgment de) retorno hdbendo, and no more. Note 69 L. R. A., 283. The sureties, it will be observed from the tenor of the fоrthcoming bond, are under obligation to return the property to the plaintiff, “with damages for its deterioration and detention, togеther with the costs of the action,” in case.“such delivery (with damages and costs) be adjudged.” Hall v. Tillman, 110 N. C., 220. Therefore, the liability of the sureties would seem to depend upon an adjudication directing “such delivery,” which may not be had against the infant defendant, except аs above indicated, simply de retoma hdbmdo. Hendley v. McIntyre, supra; 23 R. C. L., 900.

This interpretation of the liability of the sureties on the defendant’s forthcoming bond is strengthened by the circumstance that, in case a return of the property cannot for any reason be had, the sureties obligate themselves to pay to the plaintiff “such sum as may be recovered against the defendant” for the value of the property, etc. So that, if thе sureties be released where the property cannot for any reason be returned, because, in such event, no recovery can be' had against the defendant, it could hardly be said that a recovery of damages for its deterioration and dеtention was intended where the property is actually returned, though in a damaged condition. To hold otherwise would be to rendеr the sureties liable for the deterioration and detention of the property and exculpate them from all liability in case of its total loss or destruction — a rather anomalous result. 23 R. C. L., 900.

It is true, there are a few exceptions to the general rule that the obligation of a surety ‍​​‌​​​‌‌​​​‌​‌‌​​‌‌‌‌​‌​​‌​‌‌​​​‌​​​‌​​‌​‌​‌‌‌​‌‍is accessorial only, and that whatever discharges' a principal discharges a surety. Jones v. Crosthwaite, 17 Iowa, 393. *668 Fraud, deceit, illegality, and tbe like, wbicb would vitiate the contract of the principal, would also induce the discharge of the sureties, fоr these affect the character of the obligation. Smyley v. Head, 2 Rich. (S. C.), 590; Nabb v. Koontz, 17 Md., 283; Kimball v. Newell, 7 Hill (N. Y.), 116; St. Albans Bank v. Dillon, 30 Vt., 122; Davis v. Statts, 43 Ind., 103. But where one becomes a surety for the performance of a promise made by an infant, or a person incompetent to contract, the undertaking may not he purely accessorial, and the surety may be bound while the principal is not — the avoidance of such a contract being regarded as personal to the principal. Brandt on Suretyship, Vol. 1 (3 ed.), 352. Indeed, the disability of the principal, if understood by the parties, may be the vеry reason for requiring that security be given. Winn v. Sanford, 145 Mass., 302; Yale v. Wheelock, 109 Mass., 502.

And Lobaugh v. Thompson, 74 Mo., 600, may be cited as authority for holding the sureties on a replevin bond liable, while the principal, a feme covert under disability, was discharged. A similar suggestion was made in Long v. Cockrell, 55 Mo., 93. But in neither of these cases do we find the terms of the bond set out, nor a citation ‍​​‌​​​‌‌​​​‌​‌‌​​‌‌‌‌​‌​​‌​‌‌​​​‌​​​‌​​‌​‌​‌‌‌​‌‍of the provisions of the statute under which it was given. See, also, Stillwell v. Bertrand, 22 Ark., 375.

It is the uniform holding of all the courts, however, that the sureties on а replevin or redelivery bond are not to be held beyond the terms of their contract or undertaking. 23 R. C. L., 900. It is upon this ground that we rest our present decision.

As supporting in tendency this position, or by way of analogy, it may be instanced that in Laffoon v. Kerner, 138 N. C., 281, 50 S. E., 654, the sureties on a stay bond werе relieved from liability when pending the appeal from a justice’s judgment and before trial in the Superior Court, the defendant obtained a discharge in bankruptcy from all his debts, including the plaintiff’s claim, and interposed same by way of a plea in bar to plaintiff’s suit. This wаs later approved in Murray v. Bass, 184 N. C., 318, 114 S. E., 303. See, also, Fontaine v. Westbrooks, 65 N. C., 528.

Likewise, in a number of olden cases, it was held that the emancipation of slaves seized in replеvin relieved the obligors from their undertaking to return them. Glover v. Taylor, 41 Ala., 124; Green v. Lanier, 5 Heisk (Tenn.), 662; Pait v. McCutchen, 43 Tex., 291.

Nothing was said in Garner v. Quakenbush, 187 N. C., 603, 122 S. E., 474 (on rehearing, 188 N. C., 180, 124 S. E., 154), which militates against our present position.

The case may seem to he a hard one, as the plaintiff was not awarе of the defendant’s minority at the time of ‍​​‌​​​‌‌​​​‌​‌‌​​‌‌‌‌​‌​​‌​‌‌​​​‌​​​‌​​‌​‌​‌‌‌​‌‍the sale, nor does it appear that the sureties knew of his disability at the time of the execution of the *669 bond, but the dominant purpose of the law in permitting infants to dis-affirm their contracts is to protect children and thosе of tender years from their own improvidence, or want of discretion, and from the wiles of designing men.

The canse will be remanded for judgment in accordance herewith.

Error, and remanded.