3 Rawle 351 | Pa. | 1832
The opinion of the court was delivered by
The law has wisely provided, that infants shall not be liable on contracts, except for necessaries. It cannot be pretended, that here the infant would be liable on the contract of hiring, as the plaintiff has not brought his case within the principle of the exception. The plaintiff rests his right to recover on the fact, that the minor was guilty of a conversion by riding to Chester instead of Germantown. He contends, that wherever trover is the proper form of action, it will lie as well against an infant as an adult, and in this position, it must be admitted, he is supported by a decision of a court of high authority in Horner v. Twining, 3 Pick. 492. I have examined that case with the attention it merits, and I am compelled to
Had the minor gone to Germantown as he intended, then Shenck v. Strong, 1 Southard, 87, would have been express authority, adverse to the plaintiff’s claim. The foundation of the action is contract, and disguise it as you may, it is an attempt to convert a suit, originally in contract, into a constructive tort so as to charge the infant. So far are minors shielded from the consequences of their own
Wherever a person has not parted with the property, then he can assert his right, as well against an infant as an adult, as in every kind of bailment; and if the conversion had been the non-delivery of the horse and carriage hired, the owner might have sustained detinue, replevin or trover. I would here remark, that notwithstanding what is said in Horner v. Twining, I cannot distinguish this from Jennings v. Rundall, 8 T. R. 335. In the second count of the declaration, it was alleged, that the plaintiff let to hire and delivered to the defendant a certain other mare to go and perform a certain reasonable and moderate journey, &c. and yet that the defendant, contriving, &c. wrongfully and injuriously rode and'worked the said mare a much longer journey, &c. The defendant pleaded infancy to both counts, to which the plaintiff demurred. Here then there was the construe tive conversion of the property, which is the turning point of the decision in Horner v. Twining, and yet the court notwithstanding gave judgment for the defendant. The fundamental error seems to me to consist in considering the conduct of the infant as a violation of contract, whereas there was no contract, which could be enforced.
Judgment reversed, and judgment for the defendant.