Слике страница
PDF
ePub

It is claimed that the learned judge erred in charging the jury that the delivery of the gold checks was not in law a delivery of the gold. The points call our attention to that part of the charge in which the language of the judge is: "The delivery of these gold checks on the part of Mr. Cronise, it is insisted upon, is in law a delivery of the gold. I think that it was not."

It is proper to see in what connection this was said. For standing alone or applied to any and every case of a delivery of checks, it might be in some of them erroneous. What was the practical application of it for the minds of the jury? The topic then under the learned judge's and the jury's attention was whether Cronise & Co. could, under the facts of the case, in any proper view of them, be considered as injured by the plaintiff's declaration; and the judge precedes the remark excepted to by saying: "If Cronise, in point of fact, had done all that could be done on his part at that time, and had put himself in such a position that this admission could not affect his action to his prejudice, then the principle of estoppel would have no application to the case so far as he is concerned." Then he tells them, in the remark excepted to, in effect: It is insisted that the delivery of these checks was a delivery of the gold, in law, so that he could not reclaim it; and if he could not reclaim it then he was not injured by the declaration, for there was nothing he could do after such delivery.

We may infer, properly, from the words "it is insisted," that all this had passed before the jury in the argument of counsel, either to the jury or to the court, and was a reference thereto. If it should be admitted to be technically inaccurate as a statement of law, applicable to all cases, it did not tend to mislead on this occasion; and for the purpose for which it was uttered, it was correct. Doubtless the handing over of the checks was a delivery of the gold to fulfill the contract for the sale of it, in accordance with the rules of the brokers' board under which the original parties to the transaction acted. But it was not such a delivery as prevented Cronise & Co. from intercepting the checks at the counter of the Bank of New York, and there forbidding and stopping payment of them. And this is true, whether the gold be dollars, in which to make payment of a debt payable, or a commodity to be transferred in satisfaction of a contract for the sale and delivery of a chattel. The scope of the remarks of the court to the jury was that notwithstanding Cronise & Co. had put these checks into the hands of Ross, still they could stop payment of them at the place of payment. And, so considered, it did not mislead the jury from the question at issue, or give them an erroneous rule of law by which to dispose of it.

The plaintiff claims that even if it should be held that it is estopped to show the truth, as to so much of the gold as was paid to Ross over the counter of the Bank of New York, it should not be as to so much of it as was represented by the checks on the sub-treasury. And it

these checks were alone concerned in the transaction, it might be said with force that Ross could have as soon got payment on them and clear escaped, as Harmon, the clerk, could have made his errand and returned. But these checks are connected with those on the Bank of New York; and Ross did not depart with the avails of the one until he had got the avails of the other. If Ross first went to the subtreasury and obtained payment, then he afterward went to the Bank of New York; and he was there, or to and from there, from ten to fifteen minutes; and this opportunity for stopping payment of the checks of the Bank of New York was also opportunity for arrest of his person, and obtaining from him the gold got at the sub-treasury. And if it be said that he may have passed away the checks on the sub-treasury in the street to a confederate, still he was at the Bank of New York to be seized, and the coercion of arrest to be used opon him. In 53 Me. 103, arrest is named as one of the means of obtaining security which the plaintiff had let slip; and in L. R., 5 Q. B. 660, Blackburn, J., goes so far as to say that it needs not that it should appear that any benefit would result from the attempt to secure payment, but that the injured party had the right to make that attempt; and losing the exercise of the right by his reliance on the declaration, the declarant was estopped. We need not go so far here. Arrest and detention of the swindler is a powerful means in coercing restoration; and arrest and detention were as probably in the power of Cronise & Co. as the stoppage of the payment of the checks at the Bank of New York.

The judgment appealed from should be affirmed, with costs to the respondent. All concur except RAPALLO, J., who concurs as to all but the sub-treasury gold. Judgment affirmed.

[ocr errors]

III. Operation of Estoppel

[blocks in formation]

5

Sleed mat

impant was catagaped to deny his age

(Supreme Court of Mississippi, 1906. 88 Miss. 668, 41 South. 497, 9 L. R. A.

[N. S.] 1117.)

Appeal from Chancery Court, Monroe County; Baxter McFarland, Special Chancellor.

Suit by H. A. Brazil against W. H. Commander. From a decree for plaintiff, defendant appeals. Affirmed.

Appellant and his stepfather, McDaniel, entered into business as liverymen, and purchased from the wife of appellee certain horses, carriages, etc., giving notes for the purchase money, which notes were secured by a trust deed on the personal property transferred, and as additional security embraced in said trust deed a tract of land belonging

For discussion of principles, see Eaton on Equity (2d Ed.) §§ 63, 64.

to appellant. McDaniel afterwards died (according to the allegations of the bill, intestate and insolvent), and the payment of the notes having failed, and the personal property conveyed in said trust deed having been sold, and the amount realized from said sale not being sufficient to liquidate said notes, Mrs. Brazil filed a bill in chancery praying an accounting to ascertain the amount due on said indebtedness, and for the sale of the land and the application of the proceeds to the payment of the balance found to be due. The appellant filed a plea of infancy, which being overruled by the court, he answered, making his answer a cross-bill, and denied that he received any benefits from the property purchased by him and his stepfather, and charged that the complainant below knew of his infancy at the time the trust deed was executed, which facts are denied by the cross-defendant. The chancellor rendered a decree granting the relief prayed, ordered the land sold, and a payment out of the proceeds of said sale of the amount due appellee, who had acquired the claim by assignment from his wife.

MAYES, J. We think this case was correctly decided on facts, and would affirm it without any opinion, were it not for the fact that it involves a question as to whether or not a minor may make false representations as to his age, thereby inducing a contract with another person, accepting the benefits to be obtained under the contract, and afterwards escape liability by proving that he was not of age at the time of making the contract. The case of Ostrander v. Quin, 84 Miss. 230, 36 South. 257, comes very near deciding this question; but, inasmuch as there is some question as to whether the decision was based on the ground that the minor in that case used the money for necessaries, and because it was so used the court held him liable, we deem it necessary to remove all doubt on this subject. The record in this case shows that W. H. Commander was 19 years and 9 months old at the time he bought out the livery stable and executed the deed of trust in question; that he was asked the direct question, two or three times, while negotiations were being held, as to his age, and he stated he was of age; that appellee made the trade with him in good faith believing him to be 21 years of age, and on faith of the contract turned over to him the entire livery business-the appellant executing at the same time a deed in trust on the live stock, buggies, etc., so sold by appellee to him, and giving as additional security a deed of trust on 50 acres of land. The appellant having failed to pay according to his contract, and the personal property sold him by appellee having been sold under the deed in trust and not bringing enough to satisfy the debt, the land is now resorted to. It may be stated in this connection that the proof shows that the personal propery sold had been much abused by misuse and neglect. Under these circumstances can appellant successfully set up his minority as a defense to foreclosure proceedings?

Perhaps there is no subject in the law that has received more elaborate discussion, or wherein there is more hopeless conflict of authority, than the subject now presented for decision by this court. It may be

[ocr errors]

stated that the great weight of earlier authorities on this subject hold that a minor cannot be held liable on his contract, but the tendency of all modern text-books and decisions is in favor of holding a minor responsible under his contract, where he deliberately makes a false representation as to his age, and in this way induces another to contract with him, and accepts the benefits of the contract. Whatever may be the weight of earlier authorities on this subject, common justice outweighs the unsatisfactory distinctions attempted to be set up as reason why a minor should not be held liable under these circumstances. It may be said that all authorities, with hardly an exception, and regardless of the way that the different courts have held upon the subject, recognize the right of the proposition; for while they hold a minor cannot be sued on his contract, yet they hold that he is liable for his tort and make him responsible in damages for his false representations. Other authorities lay down the rule that he may not be sued at law, but he may be sued in equity. But it matters not in what court the suit may be brought or what the form of the action, the thing done is the subjecting of the minor's property to the payment of an obligation that his fraudulent conduct has created. If the property of a minor is to be subjected to the payment of debt or damages thus created by him by his fraudulent misrepresentation, we fail to see what protection is given the minor by adhering to the distinction of form attempted to be drawn by many of the earlier authorities. As it is aptly expressed in the case of Rice v. Boyer, 108 Ind. 472, 9 N. E. 420, 58 Am. Rep. 53: "There is a connection between contract and tort in every case of bailment— in the bargain and sale of personal property and of the purchase and sale of real estate; and if an infant is not responsible for his fraudulent misrepresentation of his age in connection with these transactions, there is not within the whole range of business transactions any case in which he could be made liable for his fraud." The tendency of courts at this present time, and of legislation, is to break away from mere forms and to go to the real substance of a controversy, irrespective of forms, and administer the law according to substantial right, unhampered by the technicalities of the older authorities.

If a minor is to be made liable for his fraud, and his property is to be taken to compensate in damages a person who has suffered damage by the minor's deceit, we fail to understand how it could be made any easier on the minor for this to be done through an action in tort, instead of on his contract, if the same results follow. Minority is given for the protection of a person under age, but it cannot be used as a weapon with which to commit fraud. When a minor has reached that stage of maturity in years and physical appearance as to deceive a person of ordinary prudence, and the minor does deceive such person as to his age, and asserts that he is of full age, and induces a contract to be made with him, and accepts the benefits of his contract, he will not be heard at any future time to deny that he was of full age at the time the contract was executed, and thereby escape the obligation of his contract,

------

where the party dealing with him has dealt with him believing him of full age. We do not hold that an executory contract may be enforced against an infant who falsely represents himself to be of age, unless some damage has been done to the party with whom he contracts. We do not hold that an infant is estopped by his deed merely. We do not hold that any sort of a contract may be enforced against an infant at any time on account of his false assertion that he is of age, unless the age and appearance indicate such years of maturity as the person whom he deals with may well be deceived by it. We do hold, however, that when a minor has reached that stage of maturity which indicates that he is of full age, and enters into a contract falsely representing himself to be of age, accepting the benefits of the contract, he will be estopped to deny that he is not of age when the obligation of the contract is sought to be enforced against him. Ostrander v. Quin, 84 Miss. 230, 36 South. 257; Ferguson v. Bobo, 54 Miss. 121; Levy v. Gray, 56 Miss. 318; Brantley v. Wolf, 60 Miss. 420; Rice v. Boyer, 58 Am. Rep. 53; Pɔmeroy's Equity (3d Ed.) 945; 2 Paige on Contracts, § 880; 16 Am. & Eng. Ency. of Law (2d Ed.) 292.

The chancellor in this case decreed a foreclosure of the deed in trust, with a decree over against the minor for any balance that remained due after the sale of the property if the property did not bring a sufficient price to pay the debt. We approve the chancellor's decree in toto. Affirmed.

CALHOON, J. (concurring). Recoiling from the multitude of undistinguishable distinctions in the books, I take the law to comport with what is plainly right. Infants are shielded from their own improvidence, and their contracts, as to them, are of no force except for necessities. But when a minor, whose appearance justifies belief in such statement, induced a contract, which is reasonable, by false assurances that he is of the age of majority, he should be, and is, estopped to repudiate it, and should be, and is, compellable to carry it out, or to fully restore the status quo by returning what he got and making compensation if he has wasted it.

[ocr errors]
« ПретходнаНастави »