178 Mass. 20 | Mass. | 1901
The plaintiff, a minor, originally brought suit against the defendant corporation and the Mount Pleasant Mills Corporation. When that case came to trial he elected to proceed against the Mount Pleasant Mills alone, and discontinued as to the present defendant. The Mount Pleasant Mills had judgment and the plaintiff appealed and the judgment was affirmed by this court. The case is reported in 172 Mass. 462, and the material facts are the same in this case as they were in that. This action was brought after the case against the Mount Pleasant Mills was disposed of. It is manifest that the discontinuance of the former action against the present defendant and * its prosecution against the Mount Pleasant Mills alone, being a mistake in regard to a matter of remedy merely, cannot operate to prevent the maintenance of this action. Butler v. Hil
In some cases it has been held that where the contract was beneficial to the minor and had been executed, he could not dis-affirm without putting the other party in statu quo. Breed v. Judd, 1 Gray, 455. Welch v. Welch, 103 Mass. 562. But this is not such a case. If it is for the minor to elect whether a contract is beneficial or not, then the plaintiff has exercised his election to disaffirm in this case. If it is a matter of law whether the contract is to be regarded as beneficial, it clearly could not be held in this case that it was beneficial. The defendant contends that after the votes to wind up its business and after the transfer of its property to the Mount Pleasant Mills, the rights of the stockholders of the defendant corpora
Judgment affirmed.