17 N.Y.S. 195 | N.Y. Sup. Ct. | 1891
This is an appeal from a judgment on a dismissal of the complaint upon plaintiff’s opening and offer of proof. The facts material are as follows: In January, 1890, plaintiff made a verbal contract with one James Tappan, then a minor 17 years old, that Tappan should live with plaintiff and render him services, and as compensation he should provide Tappan with board, clothing, medical attendance, and care in case of sickness, and should give him $100 when he became 21 years of age. Under that agreement Tappan worked from January 25, 1890, to December 25, 1890. On the
The plaintiff’s first position is that the agreement between him and Tappan was for necessaries, and therefore valid. It is true that, when an infant has no parent or guardian who is able to furnish what is necessary, he is liable for necessaries furnished him. Kline v. L'Amoureux, 2 Paige, 419. It does not appear whether Tappan had such parent or guardian; but, assume that he had none, then he is liable to pay for necessaries furnished him at his request. But that principle does not mean that the executory contract in regard to such necessaries is binding. Beardsley v. Hotchkiss, 96 N. Y. 201. This was shown in Baum v. Stone, 12 Wkly. Dig. 353, where it is said that the seller may recover, “not because of the contract fixing the price, but because at law the infant is bound to pay the reasonable worth of necessaries. ” Thus in this case the plaintiff may have a good claim against Tappan for the reasonable worth of necessaries furnished him, but the contract by which Tappan was to do such and such work therefor is not binding. In the case last cited the infant lived with and worked for defendant for several years before coming of age. It was held that, whatever had been the contract between them, the infant was entitled to recover the value of his services after deducting the value of the necessaries furnished. See Whitmarsh v. Hall, 3 Denio, 375. Here in the present case Tappan might recover from plaintiff the value of services, less necessaries furnished, without regard to the alleged .contract between them. The contract, then, was no more binding because it was for necessaries, and the plain I iff could not enforce it upon that ground.
Second. The plaintiff insists that infancy is a defense personal to tile infant, .■and therefore that this defendant cannot set it up. That statement of the principle is rather broad. We may quote from Beardsley v. Hotchkiss, ubi supra: “As to contracts purely executory, it must be shown that the infant ratified them after he became of age before they can be enfori ed against him. As to contracts executed, such as deeds óf land or conveyances of personal -property, they will generally be deemed to be ratified * * * unless they ibe disaffirmed by the infant before he arrives at age, or within a reasonable time thereafter. She [the infant] did not disaffirm the contract in her lifetime, and left it in full force at her death.” Of course, if the infant has ratified or has failed to disaffirm, as above particularized, at age, others cannot
This view seems conclusive of the case. But another point is urged, viz., that, irrespective of Tappan’s infancy, the contract was void by the statute of frauds, and therefore the plaintiff cannot recover. The plaintiff’s answer to this is similar to what was above, viz., that no one but the parties and privies to a contract can take advantage of this statute. Fow, it is undoubtedly true that the parties to a contract, void by the statute of frauds, may perform it if they choose, and that, when they shall have performed it, no one else can allege its invalidity. The plaintiff also urges that, where one party has been prevented from performing such a void contract by the fraudulent act of some third person, such third person is liable for damages caused by his act. Rice v. Manley, 66 N. Y. 82, and similar cases. If this were an action against the defendant at common law for damages occasioned by some fraudulent act, by which defendant had prevented Tappan from performing his contract, there would be more analogy with the cases cited. But plaintiff has no cause of action at common law, and his statutory action is limited to injury to property. Take this word in its broadest meaning, as including things in possession and things in action. Then what are things in action or dioses in action? “Bights to receive or recover a debt, or money, or damages for breach of contract, or for tort connected with contract.” Bouv. Law Dict., under “Property” and “Glioses in Action.” If we turn to the Code, § 3343, for definitions of its own use of the word we find: “Injury to property is an actionable act, whereby the estate of another is lessened, other than a personal injury or breach of a contract.” “Property includes real and personal pioperty.” “Personal property includes money, chattels, things in action, and evidences of debt.” Certainly the plaintiff was not injured as to any property in possession. Was he injured as to any chose in action? Fot unless he had a legal claim, and he had none. There is sometimes a cause of action where there is no injury to property, as, for instance, in slander and thelike. But the statutory cause of action is confined to injury to property,—