62 Ind. 111 | Ind. | 1877
Lead Opinion
Complaint against Benjamin G. Price and -Price, his wife, Charles T. Price and Lydia M. Price, his wife, alleging, that, on the 1st day of September, 1875, said Benjamin G. Price Avas the owner in fee of certain real estate (particularly describing it); that, betiveen the said 1st day of September and the 21st day thereof, said Benjamin Avas engaged in building a dwelling-house on said real estate, and that the plaintiff sold and delivered to said Benjamin, between the two dates aforesaid, building materials to be used in said house, of the value of four hundred and eighty-nine and 21-100 dollars. The plaintiff further alleges, that, on the 6th day of October, 1875, he filed a notice of intention to hold a lien on said property for the piúce of said materials, and he makes a copy of said notice an exhibit in said complaint, and avers that the notice Avas duly recorded, on said 6th day of October, in the record of mechanics’ liens, etc. The plaintiff further alleges, that, since the recording of said notice of
A demurrer to the complaint was overruled, and exception entered.
Answer by all the defendants, the general denial.
Separate answer of infaucy by Benjamin G. Price, to which a demurrer was overruled.
Lydia M. Price answered separately, that, on the 4th day of October, 1875, she purchased said real estate of Benjamin G. Price, for a valuable consideration, without notice of any lien, receiving a conveyance, which she caused to be duly recorded; that said Benjamin was an infant when he purchased said materials for said house; that they were not necessaries; and that he had disaffirmed said contract of purchase by pleading his infancy in this action.
A demurrer to this paragraph of answer was overruled, and exception entered.
A reply in two paragraphs was filed:
1. General denial;
2. That, at the time said Benjamin purchased the materials, he held himself out as being of age, etc., and that plaintiff had no information that he was not; that the materials were necessary for and were actually used in the house; that said Lydia received the conveyance of the real estate without consideration, etc.
A demurrer was overruled to this second paragraph of reply, and exception noted.
A trial by jury followed, resulting in a verdict for the plaintiff for the amount of his claim, and a decree that the mechanic’s lien be foreclosed against the property; but no personal judgment against any defendant was rendered.
A motion for a new trial was overruled, and exception
The coniplaint in this case was sufficient. It averred that the materials were furnished for the particular building. Crawford v. Crockett, 55 Ind. 220.
The court erred in overruling the demurrer to the second paragraph of reply. That reply was based upon two erroneous theories:
1. That an infant may be legally liable on his contracts, if he simply holds himself out as of age when making them;
2. That material for building a house is a necessary, within the meaning of the law making infants liable for necessaries.
Neither of the above mentioned theories is correct. As to the first, Carpenter v. Carpenter, 45 Ind. 142, is in point. As to the second, see Price v. Sanders, 60 Ind. 310.
It has been held to be the general rule of law, that none but the maker of a voidable contract and his personal representatives and privies in blood could avoid it, but this has been doubted in this State in cases of usury. Cole v. Bansemer, 26 Ind. 94. And privies in estate may do so with the maker’s consent, and may avail themselves of his avoidance when it has taken place. Borum v. Fouts, 15 Ind. 50.
It is assigned for error that the court erred in overruling the motion for a new trial. A ground on which the motion was made was, that - the verdict was not sustained by the evidence. The jury found that Benjamin G-. Price was over twenty-one years of age.
The evidence on this point was as follows :
Benjamin G-. Price, Elizabeth Rhodes, Eliza Hunt, Eliza Senex and Lydia M. Price, the mother of Benjamin G., testified, that said Benjamin G. was born in the Summer of
On the other hand the plaintiff proved that said Benjamin G. had said to diver's persons that he was over twenty-one years of age, to some of them that he was twenty-three, to some that he was twenty-four, etc. The evidence was clear enough that he was an infant.
The judgment is reversed, with costs, and the cause remanded for a new trial.
Rehearing
On petition eor a rehearing.
In September, 1875, the building materials were furnished for the house mentioned in the complaint; the house and lot on which it is situated were the property of Benjamin G. Price, and he purchased the materials of the appellee, Jennings.
On the 4th of October, 1875, said Benjamin G. sold said property to Lydia M. Price for a consideration, and executed to her a deed therefor. On the 6th day of said October, a mechanic’s lien was filed. On the 2d day of November, 1875, the suit in this case was commenced. It was tried on the 13th of December, 1875. There was no personal judgment, but simply a decree in rem, enforcing the mechanic’s lien against the property, then owned by said Lydia M. Price, a purchaser from Benjamin G., the builder of the house.
The only evidence in the cause, tending to prove that said Benjamin was of age, was the proof of his admissions. These were evidence against him and would have authorized a personal judgment against him. But the proof of these admissions was not evidence against Lydia M. Price, the owner. It is true that the declarations or admissions
The petition is overruled.
