Welch v. Welch

103 Mass. 562 | Mass. | 1870

Colt, J.

The evidence offered by the defendant was rejected by the court on the ground that it only proved an agreemen which the plaintiff might avoid by bringing his action to recover the money on reaching his majority.

It has been held that the indorsement by an infant payee of a note cannot be set aside by him as void, so as to give him a right to recover of the maker, who has paid the indorsee before notice that the order of payment is countermanded; and for the reason that the transaction has become executed in favor of his appointee, and cannot be opened without reinstating the maker. “ It would be absurd,” says Parker, C. J., in Nightingale v. Withington, 15. Mass. 272, 274, “ to allow one, who has made a promise to pay to one who is an infant or his order, to refuse to pay the money to one to whom the infant had ordered it to be paid, in direct violation of his promise.” Whether an infant may avoid an indorsement, or an order to pay money belonging to him, to a third person, before the order is executed, is another question.

The money which was paid by the plaintiff’s direction to the defendant, in the present case, was paid on account of the plaintiff’s enlistment in the military service of the United States, and belonged to him, and not to his father. Taylor v. Mechanics’ Savings Bank, 97 Mass. 345. The defendant offered to prove that the money was received by him upon an agreement with the plaintiff that it should be used, if necessary, for the support of the plaintiff’s father and family, and that it was so used. This evidence ought to have been received. It proved an executed agency; a payment by the infant’s direction which cannot, for the reasons suggested, be avoided in this action.

Verdict set aside.