11 Colo. App. 211 | Colo. Ct. App. | 1898
Lead Opinion
delivered the opinion of the court.
Defendant, Mrs. Tohill, was the owner of a leasehold estate in unimproved lands under a lease from the state of Colorado. About April 13, 1895, she agreed with plaintiff to sell and assign to him her interest in the lease. The consideration, was $96.00, for which plaintiff executed to her his promissory note, payable December 1, following, and bearing interest from date at eighteen per cent per annum. Plaintiff thereupon received and entered into possession of the lands, and during the following season caused some portion of it to be-plowed, fencing to he built, and irrigating ditches to be constructed, so as to raise a crop thereon during the season of 1896. On December 11, plaintiff applied to the brother and agent of the defendant, who had negotiated the trade, to know when the note was due. He replied that he did not remember, but would see. On examination, he found that it was-several days overdue. Plaintiff thereupon tendered to him the full amount due upon the note and interest, and demanded the assignment of the lease. The tender was refused and plaintiff informed that he had forfeited his rights under the contract by a failure to pay the note at its maturity. Plaintiff then commenced this suit to compel defendant to specifically perform her contract. In her answer, defendant admitted the making of the contract, but set up that a memorandum of the agreement was made in writing, and was as follows :
“ Memorandum of agreement made and entered into by and between Lizzie Tohill, party of the first part, and Dalton E~ Seaton, party of the second part, witnesseth:
“That the said party of the second part has given to the party of the first part a note for $96, dated the 1st day of April,. 1895, and due December 1st, 1895, with interest at the rate*213 of 18 per cent, per annum. Now if the party of the second part shall promptly pay when due the above mentioned note, then the party of the first part agrees to make unto the party of the second part an assignment of a certain lease which she holds from the State of Colorado upon the northwest quarter of section 9, township 40 north, range 8 east, in Rio Grande, ■county, Colorado. If the said note is not paid, then the party of the first part to retain her lease as before and all improvements made upon the place by whomever said improvements may have been made. Dated this 13th day of April, A.D. 1895.
“ Lizzie Tohill,
By W. O. Statton, her agent.
“ Dalton E. Seaton.”
She alleged that, time was of the essence of this agreement, .and that plaintiff’s failure to pay at the maturity of the note had worked a forfeiture of his right to have the contract performed. Plaintiff in his reply, among other things, admitted the execution of the memorandum, but averred that he was incapable of executing any such agreement so as to make it binding upon him, because he was then and ever since had been, an infant. Thereafter, before .trial, the father of plaintiff, Samuel E. Seaton, was duly appointed guardian ad litem, to prosecute the suit. Judgment was rendered in favor of the defendant, and from this plaintiff appeals.
The chief contentions of appellee in support of the judgment are that time was of the essence of the contract, and that plaintiff’s failure to pay at the maturity of the note had worked a forfeiture; also, that the plea of infancy in the replication of plaintiff, avoided the contract, and there could therefore be no decree for its performance.
Eorfeitures are not favored by the law, and will not be readily implied. It is also a rule that “ in all ordinary cases of contract, equity does not regard time as of the essence of the contract, and although a certain period of time is stipulated for its completion, equity treats the provision as formal rather than essential, and permits a party who has suffered
Infants are considered in law as not being capable of adequately protecting their own interests in the making of contracts, by reason of the inexperience, want of discretion, and immaturity of judgment incident to youth. The law therefore seeks to protect them from their own imprudence and from the imposition of others, by according to them the privilege of avoiding any contract to which they may be a party, not manifestly to their advantage and interest. This right and prerogative is personal, however, and attaches to the infant alone. Under no circumstances can it he available to
The judgment was erroneous for another reason. The contract was completed on the part of the infant plaintiff. Nothing whatever remained to be done by him under the terms of the agreement. Upon the refusal of defendant to accept the money which he was obligated to pay and which he had tendered, he had paid it into the court for her benefit.
The record before us does not present a case wherein a' party after he arrives at the years of majority seeks to repudiate and avoid a contract on the plea of his infancy at the time it was entered into. Here the minority still continued. If it had ceased, the court would have considered the party capable of protecting his own interests and would not have been called upon to exercise its judgment as to whether or not the contract sought to be avoided would be beneficial or prejudicial to him. The rule is otherwise, however, where the plea of infancy is sought to be interposed in behalf of the infant during his minority. In such case he is a ward of the court, whose duty it is to exercise a watchful and protecting care over his interests, and not permit his rights to be waived, prejudiced or surrendered either by his own acts, or by the admissions or pleadings of those who act for him. Under the Colorado code, where an infant is a party to a suit, he must appear by next friend or guardian to be appointed by the court or judge. Code, secs. 7, 8. He is in reality, however, but the agent of the court through whom it acts to protect the interests of the minor. The court is itself the guardian. Cole v. Superior Court, 63 Cal. 89. Here the infant was appearing and prosecuting by a guardian ad litem. Whatever may have been the intent or effect of the plea of infancy set up in the replication, it was the plea of the guardian in behalf of his ward. The court held that its effect was to avoid the contract, the enforcement of which was the sole object of the suit. It should not therefore have been permitted or entertained, if it appeared that thereby the rights of the infant would have been surrendered or his interests prejudiced. It is a rule well settled that an infant cannot be bound by the admissions of his guardian unless
This rule both as to the power and duty of the court is thus plainly and forcibly stated by the supreme court of Illinois in Lloyd v. Kirkwood, supra: “ Whenever the property rights of an infant are drawn into litigation, and the infant himself, whether as plaintiff or defendant, has been brought into court, he at once becomes the ward of the court, and as such it is the duty of the court to see that his rights, as such, are properly protected. If, having a legally appointed guardian, such guardian does not appear to the action for the purpose of managing his suit, it is the duty of the court to appoint a guardian ad litem, to perform that duty. If the guardian who undertakes the performance of this trust, whether he be the general guardian or merely a guardian ad litem, fails to properly protect the interests of the ward, it is the duty of the court, sua sponte, to compel him to do so whenever the fact in any manner is brought to the notice of the court.” Our own supreme court has expressed very positive views in this line. In Hutchinson v. McLaughlin, 15 Colo. 495, it said: “ It is the policy of the law to fully protect the rights of minors, and this may be done, even if the guardian or proehein ami does not properly claim such rights or has even failed to claim them at all.”
This court has also asserted the same doctrine, Fetta v. Vandevier, 3 Colo. App. 419, which was affirmed on appeal to the supreme court. Fetta v. Vandevier, 20 Colo. 369.
As to how in this case the plea affected the interests of the infant plaintiff, if it be given the effect held by the trial court, there is no room for dispute. His valuable rights and
For these reasons, the judgment will be reversed, and the cause remanded for a new trial in conformity with the views herein expressed.
Reversed.
Rehearing
ON MOTION FOR REHEARING.
The views expressed in the opinion handed down in this cause do not conflict with the doctrine laid down by this court in Winters v. Goebner, 2 Colo. App. 259. The two cases are clearly distinguishable. In that, the purpose of the action was to enforce an agreement to execute a bond and lease of certain mining property. The written memorandum of the contract, signed by the two parties, did not recite the payment of any consideration, nor the promise to pay any consideration in the future, nor did the evidence disclose that any consideration had been paid. The court therefore very properly held that it was a mere naked agreement, without any valuable consideration, and was ■ hence not en