127 Tenn. 673 | Tenn. | 1913
delivered the opinion of the Court.
The arguments of the attorneys in this case relate to' two phases of the law bearing on an infant’s disaffirmance of his contract of settlement of a personal injury claim, pleaded as an accord and satisfaction.
The first phase involves a point discussed, but that may be said to have been by way of obiter, or to have been reserved from decision, in the case of Lane v. Dayton, etc., Co., 101 Tenn., 581, 48 S. W., 1094, whether an averment that the consideration, received by the infant in satisfaction, had been expended or was not on hand, will excuse tender or return of the amount, so as to enable him to maintain the suit.
Judge Snodgrass there said that:
The “general rule is well stated in the editor’s first note to the case of Englebert v. Pritchett, 26 L. R. A., 177, as follows: ‘The rule which comes the nearest to being general is that all consideration which remains in the infant’s possession upon his reaching majority, or at the time of an attempted disaffirmance in case he is still under age, must be returned, but that disaffirmance will not be defeated by inability to return what he has parted with prior to such time. He will.not be permitted to regain what he parted with, or refuse payment while still possessed of what he received. There hare been many distinctions attempted between executory and executed contracts, and between seeking relief at law andun equity; but, with only a few exceptions, ihe rule
“On the merits, as to refunding or tendering, with some distinctions as to time and special facts, the Tennessee cases, so far as they go, rightly understood, are in accord.”
The learned judge having thus just pointed out that the rule was applicable alike at law and in equity, then cites an equity case, Nichol v. Steger, 6 Lea, 393, where it was said:
“It is- earnestly urged, however., that the infant, in n court of equity, must return the property before he -can disaffirm the contract. We need but say that where the property is in his possession, or he still has it, so that, the court-can compel him so to do, he'will he re-VIred to return it, as one of the terms on which the court gives relief from an improvident contract, or one made by a party under the disability of infancy.
“But where he has parted with the property, or it is destroyed, then it is impossible to administer this equity, tte hold that in such a case, when the infant is sued for We price, he might defend against his liability on the contract, but is to be held responsible as for a tort 'In converting the property, would be practically to debar him from the plea of infancy as to Ms unauthorized' . contracts, unless he was prepared to place the vendor in status quo by a return of the property.’» .;
The supreme court of the United States, after a review of the authorities, said: “If the consideration has passed from his [the infant’s] hands, either wasted or expended during his minority, he is not thereby to be deprived of his right or capacity to avoid his deed, any more than he is to avoid his executory contracts.” MacGreal v. Taylor, 167 U. S., 688, 17 Sup. Ct., 961, 42 L. Ed., 326.
It is true, as argued by counsel for defendant company, that the rule here announced puts it in the power of a minor to perpetrate a fraud; but this can only occur in instances where the person liable or sued has prece'dently proceeded in disregard of other rules laid down for the protection of infants against the effect of their folly and indiscretion, which safeguards would be subject to be thwarted in effect, or circumvented, were the contention of defendant company adopted.
Passing the question of lack of authority of a mother, as next friend or parent, to enter into a settlement for the minor (Green v. Perkins, 3 Lea, 491; Cody v. Iron Co., 105 Tenn., 516, 58 S. W., 850; Mo. Pac. R. Co. v. Lasca, 79 Kan., 311, 99 Pac., 616, 21 L. R. A. [N. S.], 338, 17 Ann. Cas., 605), the rule seems to be well established, on authority as well as on reason, that where the consideration is not paid to the infant, but to the parent, the infant is under no obligation to make a tender in return in order to disaffirm. Griffis v. Younger, 41 N. C., 520, 51 Am. Dec., 438; Stull v. Harris, 51 Ark., 294, 11 S. W., 104, 2 L. R. A., 741; Vogelsang v. Null, 67 Tex., 465, 3 S. W., 451, and cases cited in notes, 18 Am. St. Rep., 689, 26 L. R. A., 183.
The infant lacked legal capacity to consent to or di
Writ of certiorari to review the judgment of the court of civil appeals denied.