Rice v. . Butler
55 N.E. 275
NY
1899
Check Treatment
Haight, J.

The appeal in this case is based upon the certificate of the Appellate Division to the effect that questions of law are involved which ought to be reviewed by this court. The action was brought in the Municipal Court of Syracuse to recover the sum of $26.25, paid by the plaintiff, a minor seventeen years of age, upon a contract for the purchase of a bicycle. The contract price was $15; $15 were paid upon the execution of the contract, and the remainder was to be paid in weekly installments of $1.25. The plaintiff purchased the wheel in June and used it until about the 20th of September and then returned it to the defendant, asserting that she had been defrauded, and demanded repayment of the amount that she had paid upon the contract. The defendant took the wheel, but refused to return the money, claiming that the use of the wheel and its deterioration in value exceeded the sum paid. Hpon the trial evidence was submitted on behalf of the defendant tending to show that the use of the wheel and its deterioration in value equalled or exceeded the amount that had been paid upon the contract. The trial court found in favor of the defendant, thus establishing the fact that there had been no fraud on the part of the defendant in making the contract.

It is now contended that the contract was executory, and that being such the plaintiff had the right to rescind and recover back the amount paid. The Appellate Division appears to have taken this view of the case, and has reversed the judgment. The question thus presented may not be free from difficulty. There are numerous authorities bearing upon the question, but they are not in entire harmony. We have examined them with some care, but have found none iil this court which appears to settle the question now presented. *582 We, consequently, are left free to adopt such a rule as in our judgment will best promote justice and equity. The contract in this case in its entirety must be held to be executory; for, under its terms, payments were to mature in the future and the title was only to pass to the minor upon making all of the payments stipulated; but in so far as the payments made were concerned the contract was in a sense executed, for nothing further remained to be done with reference to those payments. Kent, in his Commentaries (Yol. 2, page 240), says: “ If an infant pays money on his contract and enjoys the benefit of it and then avoids it when he comes of age he cannot recover back the consideration paid. On the other hand, if he avoids an executed contract when he comes of age on the ground of infancy, he must restore the consideration which he had received; The privilege of infancy is to be used as a shield and not as a sword. He cannot have the benefit of the contract on one side without returning the equivalent on the other.”

- In the case of Gray v. Lessington (2 Bosw. 257), a young lady during her minority had purchased a quantity of household furniture, paying about half of the purchase price, and had given her note for the balance. She subsequently rescinded the contract and sought to recover- the amount that she had paid. She had had the use of the furniture in the meantime, and it was held that she must account for its deterioration in value. Woodruff, J., in delivering the opinion of the court, says : “ When it becomes necessary for an infant to go into a court of equity, to cancel her obligations, or regain the pledge given for their performance, seeking equity, she must do equity. Making full satisfaction for the deterioration of the property, arising from its use, is doing no more. Presumptively, she has derived from the use of the property a profit, or benefit, equivalent to such deterioration.”

In the case of Medbury v. Watrous (7 Hill, 110) an action was brought by an infant to recover for services performed, of the value of $70. The defense was that the work was done in part performance of a covenant to purchase of the *583 defendant a house and lot for the sum of $600. He had not entered into the possession of the house and lot and had received no benefits from the purchase. It was held that he could rescind the contract, and, having received nothing under it, he could recover upon a quantum meruit for the work performed. Beaedslev, J., in delivering the opinion of the court, refers to the rule laid down by Chancellor Kent, and then to the case of Holmes v. Blogg (8 Taunt. 508), and says, with reference to the later case: “ It was not shown what had been the value of the use of the premises demised, while the infant remained in possession. If that was less than the sum paid by him, it may well be that he ought to have recovered the difference.” It will thus be seen that the cases to which we have alluded recognize the principle which we think ought to be applied to this case, and that is, that the plaintiff, having had the use of the bicycle during the time intervening between her purchase and its return, ought, in justice and in fairness, to account for its reasonable use or deterioration in value. Otherwise she would be making use of the privilege of infancy as a sword, and not as a shield. In the the absence of wanton injury to the property the value of the use would bo deemed to include the deterioration in value, and, under the evidence in this case and as found by the trial court, the use equalled the sum paid. Our attention has been called to the cases of Pyne v. Wood (145 Mass. 558) and McCarthy v. Henderson (138 Mass. 310), but we think the rule suggested by us is more equitable and that they should not be followed.

The judgment of the Appellate Division should be reversed and that of the trial and County Court affirmed, with costs, and the second, third and fourth questions certified to us answered in the affirmative. An answer of the first question is not deemed necessary further than intimated in the opinion.

All concur.

Judgment reversed, etc.