68 A.2d 691 | Vt. | 1949
The plaintiff, who at all times herein considered was a minor, having at defendant's request returned two trucks which he had leased or purchased from defendant, brought this action in contract by his next friend for the consideration paid. It is immaterial for the purposes of this opinion whether the transaction was a lease or sale, and so we do not belabor that point. There was no specific mention in the writ or complaint that plaintiff was a minor, nor was there an allegation that prior to bringing suit he had rescinded the contract and demanded a return of the consideration. When it was stated in plaintiff's counsel's opening statement that plaintiff was a minor and sought to recover money paid under a rescinded contract, defendant moved to dismiss on two grounds: first, that the fact of infancy must appear in the pleading; and second, that plaintiff must allege that he had rescinded the contract and demanded a return of the consideration prior to bringing suit. Whereupon the court permitted plaintiff to amend by adding the words "a minor" after his name in the writ, and denied the motion to dismiss. Defendant excepted to the court's allowance of the amendment on the ground that the original writ did not set forth a cause of action, and excepted to the denial of his motion to dismiss on the same grounds urged in its support, as indicated above.
The defendant is correct in its contention that good pleading requires a minor to specifically state that he is such when he sues by his next friend. But the failure to so allege does not vitiate the cause of action. It was obvious to defendant from the form of the suit that plaintiff was under a disability. The pleader's design appeared with reasonable certainty. Howe v.Lisbon Savings Bank,
The power of amendment with respect to parties is largely in the sound discretion of the trial court. Emerson v. Wilson, *43
What we have here is a partially inadequate description of a minor plaintiff. This may be corrected by amendment, and for this holding Hathaway v. Sabin,
So far as appears, the court acted as a matter of discretion. The amendment introduced no new cause of action, but was for the same matter more fully or differently laid, and was properly allowed under V. S. 1617 and 1618, Rev. 1947.Albertson v. Bray Wood Heel Co.,
It remains only to be said that if defendant was surprised by the fact that plaintiff was a minor, his rights were fully protected by County Court rule 15 (7), 1946, which provides for continuance on amendment for cause shown. No request for a continuance was made; on the contrary defendant proceeded immediately to trial, and the cause was fully heard for three days.
Next for determination is whether a minor plaintiff must rescind the contract and demand a return of the consideration paid before bringing a suit sounding in contract to recover such consideration. The answer is that he need not. Whitcomb v.Joslyn,
Defendant cites McNaughton b.n.f. v. Granite Auto Sales,
The plaintiff also relies on Bombardier v. Goodrich,
Although plaintiff had worked for his father for a year on the latter's farm, he knew trucking best and that had been his kind of work. While he had possession of the trucks he used them in hauling logs for defendant, applying the net income derived from this service at first for his own support, and after his marriage for the support of himself and his family. It does not appear that the owning or leasing and the operation of a truck or trucks was the only means of livelihood open to him. Defendant requested the court to find that under these circumstances the trucks became necessaries for plaintiff, and excepted to the court's refusal so to do upon the grounds that the finding was material, and that under the circumstances he is estopped from claiming that the trucks were not necessaries.
The court was by no means required as a matter of law *45
to comply with the request. It is true that what are necessaries depends on the facts of a particular case. Winship v.Waterman,
"A minor is bound by and cannot disaffirm his contract for necessaries, such as food, clothing, lodging, medical attendance, and instruction suitable and requisite for the proper training and development of his mind. While the term `necessaries' is not confined merely to such things as are required for bare subsistence, and is held to include those things useful, suitable, and necessary for the minor's support, use, and comfort, it is limited in its inclusion to articles of personal use, necessary for the support of the body and improvement of the mind of the infant, and is not extended to articles purchased for business purposes, even though the minor earns his living by the use of them and has no other means of support."
Emancipation by a father does not enlarge a minor's capacity to contract, Person v. Chase,
The trial court found the fact to be that both trucks were not necessaries, and in so far as the question was one of law, so ruled. No error appears.
Defendant asserts in his brief that on the facts as stated above plaintiff is estopped from asserting his infancy, but cites no authorities to that effect. Under the circumstances it is enough to *46 say that none of the elements of a minor's estoppel, as we understand them, are present. See 27 Am Jur 796 et seq.
Defendant requested the court to find that the arrangement between plaintiff and defendant constituted leases of the two trucks, and not conditional sales of them, and further requested the court to find that the sums paid by plaintiff to defendant were for the use of the trucks while in plaintiff's possession. The court refused to so find, and defendant excepted on the ground that the requested findings were material, that plaintiff had received full value for both trucks during the period that he had them, and that there was nothing for defendant to return to plaintiff on disaffirmance of the contract.
We indicated above that for the purposes of this case it is immaterial whether the trucks were conditionally sold or leased. In either event the rule is that if a minor, having used or parted with the property received while still a minor (as here), no longer possesses it he may, and as a logical consequence of his incapacity, avoid an executory promise or an executed transfer without liability for what was given him in exchange. 1 Williston on Contracts (supra) Section 238, pages 702 and 703. This has been the law of Vermont since Price v. Furnam,
It is true, as urged by defendant, that this rule sometimes causes hardship on the adult, and that there is a minority view *47 which requires that the minor must put the other party in statu quo. The cases are collected in Williston on Contracts (supra) § 238. Still it is equally true that our rule, which is that of the majority, has operated satisfactorily for almost one hundred years. No occasion for change appears. It follows that the court was without error in declining to find as requested. Had it so found, the result would be the same.
On February 4, 1948, after some negotiations, plaintiff and defendant entered into a written accord and satisfaction of certain differences which had arisen over the trucks and their operation by plaintiff in defendant's employ. Specifically, plaintiff forwent and canceled any claims and any equity which he might have in the second truck, and in return defendant acknowledged full settlement of plaintiff's account. Defendant requested the court to find that this agreement was fully executed by both parties, and excepted to the court's refusal to find exactly as requested on the ground that the request was material, and on the additional ground that plaintiff received full value for defendant's release of him and that plaintiff's receipt based on a valid and sufficient consideration bars him from claiming the sums for which he sued. Defendant cites no authority in support of his position. Passing over the sufficiency of the briefing, and whether the findings fairly construed show that the accord and satisfaction was fully executed (in our judgment the findings do so show), we proceed directly to the point sought to be raised.
An executed accord and satisfaction is not binding on a minor. It was so held in Bromley b. n. f. v. School District,
Defendant argues in his brief that the agreement of February 4, 1948, was never avoided. It does not appear that this point was raised on trial, but had it been, it would have been unavailing. Plaintiff received nothing under the accord but a cancellation of defendant's claims against him. A minor may disaffirm a release given by him by merely bringing an action on the claim released. St. Louis etc. R. R. v. Higgins, 44 Ark. 293;Arizona Eastern R. R. Co. v. Carillo,
Defendant excepted to the judgment, which raises the question of whether the judgment is supported by the findings.Duschaine v. Zaetz,
All but one of the grounds urged in support of this exception *48 have been disposed of above adversely to defendant, and as to them repetition would serve no useful purpose. For the one, defendant directs our attention to Finding #24, which reads in part as follows:
"The defendants had no knowledge previous to the time the suit was brought or at that time that the plaintiff was attempting to recover from them payments which they had withheld from him on the ground that he was a minor at the time of his transactions with the defendants."
We must indulge all reasonable intendments in favor of the judgment and read doubtful findings in support of it, if we reasonably can so do. Hooper v. Levin,
But if the court meant the finding to indicate that after defendant received and read the writ and complaint served on him, he still did not know in contemplation of law that plaintiff sought to recover on the ground that he, plaintiff, was a minor, then the finding is in substance a conclusion of law, and not in accordance with the facts as shown by the record, nor with this opinion. As such it is to be disregarded.Dieter v. Scott,
Judgment affirmed. *49