12 R.I. 272 | R.I. | 1879
The plaintiff, a minor, sues to recover back the sum of forty dollars which he paid the defendant as the percentage required to the paid down for property struck off to him at an auction sale. The defendant contends, first, that it having been a voluntary payment the plaintiff cannot recover it back; second, that if he is entitled to recover it back the defendant should be allowed to deduct for the expense and trouble which he has been put to by the plaintiff's rescinding the contract. Parsons on Contracts, vol. 1, cap. 17, sect. 5, *322, 6th edition, 1873, lays down the law on the first point broadly as claimed by the defendant. "If an infant advances money on a voidable contract which he afterwards rescinds, he cannot recover this money back because it is lost to him by his own act, and the privilege of infancy does not extend so far as to restore this *274
money unless it was obtained from him by fraud." He cities no authority. The doctrine so broadly laid down has been overruled by later authorities, and this passage has been condemned inRobinson v. Weeks,
In one of the earliest cases, Earl of Buckinghamshire v.Drury, 2 Eden, 60, 72, Lord Mansfield did use language similar to this; but the case was on the point whether a feme covert could be barred of her dower by jointure settled on her while under age. Lords Hardwicke and Manfield and Sir John Wilmot concurred in the decision of that case, but it has been disapproved since. See, in relation to that case, Wilmot's Notes of opinions, 177, 226; Milner v. Lord Harewood, 18 Vesey Jr. 259, 271.
In Zouch e dimiss, Abbot v. Parsons, A.D. 1765, 3 Burr. 1794, compare 1 Evans' Decisions, 111, Lord Mansfield laid down many of the general rules drawn from the decisions, which have since substantially prevailed, and also, it is believed, first used the expression that the privileges of infancy were given as a shield and not as a sword, which has become a maxim in this branch of the law.
Macpherson, in his work on infancy, page 484, also cited inMedbury v. Watrous, 7 Hill N.Y. 110, 114, lays down as law that if a minor contracts for an estate and pays a deposit he cannot, in the absence of fraud, recover it back. But he cites no case. But on page 489 the case of Wilson v. Kearse, Peake's Add. Cas. 196, at Nisi Prius, is cited, where Lord Kenyon is reported to have once used language similar to that we have quoted from Parsons, that if a minor pays money voluntarily he cannot, if there is no fraud, recover it back. But there is no full not reliable report of this case.
The case of Holmes v. Blogg, 8 Taunt. 508, also in 2 J.B. Moore, 552, was this: The infant had paid a premium for a lease and had occupied the leased premises until he came of age, when he quit the premises and sued to recover the money back. The court held that having paid money on a valuable consideration, and having partially enjoyed that consideration, he could not recover it back. Chief Justice Gibbs does indeed say that "having paid the money with his own hand" he "cannot recover it back again." *275
In Corpe v. Overton, 10 Bing. 252, the court holding that the plaintiff might recover back money paid, expressly say that they do not impeach the decision in Holmes v. Blogg. InCorpe v. Overton, Corpe agreed to form a partnership, and paid down £ 150 to be forfeited if he failed on coming of age to execute a proper partnership agreement. He rescinded the contract and sued for the money back, having received no advantage whatever from the agreement. In deciding this case, Bosanquet, J., said that the court used strong expressions in Holmes v.Blogg, but we must look not to the expressions alone but to the facts to which they were applied. And see also as to the language used by Gibbs, C.J., in Holmes v. Blogg, Riley v. Mallory,
The case of M'Coy v. Huffman, 8 Cow. 84, A.D. 1827, was a case where an infant had agreed to purchase land and had paid in money and work toward it and sued to recover for that. The court decided, on the authority of Holmes v. Blogg, that he could not recover.
In Medbury v. Watrous, 7 Hill N.Y. 110, A.D. 1845, the plaintiff, a minor, agreed to buy a house and land of the defendant, and had in part payment done work while a minor for the defendant to the value of $70.20. He never had possession of nor received anything from the house, but on becoming of age sued to recover the value of his work. The case of M'Coy v.Huffman was relied on for the defendant, but the court overruled it. And they distinguished it from the case of Holmes v. Blogg, and approve of Corpe v. Overton, and held that the plaintiff should recover. The case is very ably stated. It was decided when the Supreme Court of New York was the Supreme Court of the whole State, and was composed of Nelson, Beardsley, and Bronson.
Robinson v. Weeks,
The court held that the plaintiff could not recover without returning the consideration if it was in existence or under his control, but that the receipts were of no value except as evidences of payment. "The protection which the law supposes the infant to need is just as much required against the improvidence which has paid out as against that which only promises to pay, and where it can be given without converting the shield into a sword it should be given." Judgment for the plaintiff.
The weight of authority and we think of reason is, that it is no defence that the minor voluntarily paid the money, and that when he has received no benefit from the contract he has a right to recover it back.
Excellent remarks on the classification of minors' contracts are contained in Reeve's Domestic Relations quoted and approved in Riley v. Mallory,
But it has been argued that if the plaintiff can recover, there should be a deduction made for any expenses which the defendant has been put to.
In Moses v. Stevens, 2 Pick. 332, the plaintiff, a boy of eighteen years, agreed to work for the defendant for three years and the defendant was to clothe him, c., and at the end of the time was to pay him $120. He worked three months and left without cause of complaint; the defendant subsequently paid the plaintiff $2, which he took in satisfaction. The plaintiff sued for his work on a quantum meruit. The judge charged that he was entitled to what his services were worth to the defendant, and that the defendant was not entitled to deduct any damages for breach of the contract before the plaintiff's coming of age, but that if the defendant was injured by the sudden termination of it without notice, the jury might deduct the amount of the injury. On arguing the exceptions it was contended that the contract, being for the infant's benefit, was binding, and that the doctrine of entirety of contract applied to infants as well as adults. The court held the charge correct, that the jury should give what under all the circumstances the services were worth, making allowance for any injury, and that that was the reasonable and lawful course.
It is claimed that the case of Moses v. Stevens was overruled in Massachusetts by the case of Vent v. Osgood, 19 Pick. 572. In *277
the last case the plaintiff, a minor, shipped as a seaman for a voyage, and deserted before the end of the voyage, without fault on the part of the master, and sued for his wages. The plaintiff claimed on quantum meruit for his services. The defendant contended that the effect of the minor's avoidance of the contract was prospective only, and that as he had not performed it he could not recover for past services, and Weeks v.Leighton,
In the case of Judkins v. Walker,
In the case of Thomas v. Dike,
Of the New Hampshire cases cited, Weeks v. Leighton,
On the other side, against allowing any deduction, areWhitmarsh v. Hall, 3 Denio, 375, and Derocher v.Continental Mills,
In the latter case the plaintiff had agreed to work in a mill for at least six months and not to leave without giving two weeks' notice. She worked a part of the time and left without notice. The court say the question is whether she is liable to have the damage occasioned by not giving the notice deducted. "To compel the minor to make good the loss occasioned by non-performance of his contract is virtually to enforce the contract." No suit could be maintained against the infant for a breach of it, they say, and to allow a deduction for damages seems to be equivalent to that. And they held that the true rule was that of Robinson v. Weeks,
On this we remark that no case has held that damages must be deducted for not giving any notice specially contracted for or not working out the whole time of the contract. But it is a very different thing to hold that there being no binding contract the plaintiff may recover a reasonable compensation, deducting for any injury done. And the rule of Robinson v. Weeks was laid down in a case of money paid out and not of services performed.
While we think, therefore, that in cases of work and labor done the weight of authority is in favor of the rule as stated by Redfield in Hoxie v. Lincoln,
The present suit is to recover money paid. If the minor had received any consideration or benefit whatever it would come within another class of cases. But he has received neither. And we think the principles on which Robinson v. Weeks,
The motion for a new trial must therefore be denied.
Exceptions overruled.