89 Neb. 496 | Neb. | 1911
Lead Opinion
This is an action in replevin brought to recover a piano sold to defendant by plaintiff for $300 under a conditional sale contract whereby the title to the instrument ivas retained by the seller until it was fully paid for. Defendant was a minor 17 years of age at the time of the sale. He made default in certain monthly payments, and this action was brought to obtain possession. The piano was taken under the writ and delivered to plaintiff. Defendant pleaded infancy, that he had paid $106 on the piano, no part of which had been tendered or returned, and prayed for a return of the piano or for a judgment for the amount paid by him with interest. The cause was tried to the court without a jury. The finding and judgment were
There is no dispute as to the facts. The only question presented is whether the plaintiff was entitled to retake the piano without returning the amount, paid upon the contract. The plaintiff, while conceding that an infant may repudiate a contract respecting personal property during his minority, and that the disaffirmance completely puts an end to its existence both as to him and as to the adult with whom he contracted, and that, before an infant disaffirming a contract can recover property from an adult, he must return what he has received under the contract, argues that, under the rule announced in Schrandt v. Young, 62 Neb. 254, the gist of an action in replevin is the right of possession, and the only damages that may be recovered are those arising from the unlawful detention, and insists that the district court properly held that the question of refunding the money paid cannot be determined in this action. e
The plaintiff began this action relying upon the conditional contract. After it was begun the infant dis-affirmed the contract, and by the act of disaffirmance effectually took away from the plaintiff any right it was then asserting thereunder. The parties then stood exactly in the same position with respect to the piano and the partial payments made thereon as if no conditional contract had ever existed. The contract being set aside by the disaffirmance, plaintiff, still being the owner of the piano, was in the same position as it would have been had it begun the action upon the rescission of an ordinary contract of sale. In such case, would it be permitted to obtain possession of the property in the infant’s hands without returning the consideration paid? We think not. The rule is that one who in his minority obtained property which is still in his hands cannot after majority dis-affirm and recover the property which he conveyed in exchange for it, unless he offer to return that which he has,
In an action to compel the delivery of certain bills of lading of goods and to restrain C fondants from departing with the goods or from interfering with the merchandise which they represented, it was held in New York that a counterclaim for the price of the identical goods which Avere the subject of the action was a cause of action “arising .out of the transaction,” or at least “connected with the subject of the action,” and is strictly a counterclaim within the provision of the code. Thompson v. Kessel, 30 N. Y. 383.
Where a horse was exchanged for land, and, it having returned to the possession of the original owner, an ac
Mr. Pomeroy says, in Code Remedies (4th ed.) sec. *791: “The practical question therefore is: When, if ever, may there be a counterclaim of money in an action brought to recover possession of chattels? In some exceptional cases such counterclaims have been allowed, and in my opinion properly allowed. For example, an answer stating the circumstances under which the goods demanded by the action came into the defendant’s possession, that the plaintiff was indebted to him in a specified amount, that the chattels were delivered to him as a security for such debt, and That he held them by virtue of the lien thus created by the pledge, and demanding judgment for the debt itself, was adjudged a proper counterclaim.” See, on general subject, 34 Cyc. 686; Carpenter v. Manhattan Life Ins. Co., 22 Hun (N. Y.) 49; Tower-Doyle Commission Co. v. Smith, 86 Mo. App. 490; Smith v. Fife, 2 Neb. 10.
The claim made is one “existing in favor of a defendant, and against a plaintiff, between whom a several judgment might be had in the, action, and arising out of the contract or transaction set forth in the petition as the foundation of the plaintiff’s claim,” and it is “connected with the subject of the action.” It falls, therefore, directly under the provision of section 101 of the code. The principle is clearly distinguishable from that in Schrandt v. Young, supra, on which plaintiff relies.
'We think the district court had the authority under the issues to determine whether defendant was. entitled to the return of the money paid, and that its judgment should have been in favor of the plaintiff for the recovery of the piano upon its paying the amount the plaintiff had paid thereon, but without interest, since the use of the piano
The judgment of the district court for the possession of the piano is affirmed, but that portion of the judgment denying defendant the right to try the issue as to the money paid is reversed and the cause remanded for further proceedings in accordance with this opinion; appellant to recover costs.
Judgment accordingly.
Concurrence Opinion
concurring.
I think that, under the evidence in this case, the defendant had a special interest in the property to the amount which he had paid to the plaintiff therefor. There seems to be no doubt that the infant could disaffirm his contract of purchase, and if his vendor should elect to take the property it could only be on condition of returning to the infant the amount which had been paid under the contract. The case then falls within sections 191 and 191a- of the code. The finding should have been for the defendant, that he had the right of possession only and that the value of his possession urns the amount which he had paid upon the contract before he disaffirmed. Then the judgment should have been in the alternative, either that the possession be returned to the defendant or that he be paid the “value of the possession of the same,” as provided in section 191a. It does not seem strange that the trial court was misled by the opinion in Schrandt v. Young, 62 Neb. 254. In the whole learned discussion in that case it would seem that the fact that the defendant had a special interest in
Concurrence Opinion
concurs.
