in New York, in which it was held that an infant was not entitled to recover back the sum paid under a chattel mortgage given to secure payment of the price of a piano which he had purchased, where it appeared that the reasonable

than it was worth, or where the contract was of an improvident character, calculated to result in the squandering of his estate, and that fact was known to the other party; and yet if he was an adult the court would grant him no relief, but leave him to stand the consequences of his own foolish bargain. But to measure the right of an infant in such cases by the same rule that would be applied in the case of an adult would be to fail to give due weight to the disparity between an adult and the infant, or to apply the proper standard of fair dealing due from the former to the latter. Even as between adults, when a transaction is assailed on the ground of fraud, undue influence, etc., their disparity in intelligence and experience, or in any other respect which gives one an ascendency over the other, or tends to prevent the latter from exercising an intelligent and unbiased judgment, is always a most vital consideration with the courts. Where a contract is improvident and unfair, courts of equity have frequently inferred fraud from the mere disparity of the parties. If this is true as to adults, the rule ought certainly to be applied with still greater liberality in favor of infants, whom the law deems so incompetent to care for themselves that it holds them incapable of binding themselves by contract, except for necessaries. In view of this disparity of the parties, thus recognized by law, every one who assumes to contract with an infant should be held to the utmost good faith and fair dealing. We further think that this disparity is such as to raise a presumption against the fairness of the contract, and to cast upon the other party the burden of proving that it was a fair and reasonable one, and free from any fraud, undue influence, or overreaching. A similar principle applies to all the relations where, from disparity of years, intellect, or knowledge, one of the parties to the contract has an ascendency which prevents the other from exercising an unbiased judgment, as, for example, parent and child, husband and wife, or guardian and ward. It is true that the mere fact that a person is dealing with an infant creates no fiduciary relation between them, in the proper sense of the term, such as exists between guardian and ward; but we think that he who deals with an infant should be held to substantially the same standard of fair dealing, and be charged with the burden of proving that the contract was in all respects fair and reasonable, and not tainted with any fraud, undue influence, or overreaching on his part. Of course, in this as in all other cases, the degree of disparity between the parties, in age and mental capacity, would be an important consideration. Moreover, if the contract was not in all respects fair and reasonable, the extent to which the infant should recover would depend on the nature and extent of the element of unfairness which characterized the transaction. If the party dealing with the infant was guilty of actual fraud or bad faith, we think the infant should be allowed to recover back all he had paid,

value of the use of the piano during the time he had retained and used it exceeded the amount which he had paid.27

From this confusion of the authorities it seems possible, however, to extract at least one rule on which all are in substantial agreement. It is that if the consideration received by the infant consisted in money or property, and if he still retains it in his possession or control at the time he seeks to disaffirm his contract, or if he retains possession of other property into which he had converted it, then he must restore it to the other party as a condition to being released from his own engagement or recovering his own money or property.276 "Equity will restore his or her property to the disaffirming party, but the person who thus loses it will be permitted to recover any money paid upon the faith of the validity of the transaction, provided the money is then in hand or the property into which it has. been converted can be reached by a proceeding in rem." 277

without making restitution, except, of course, to the extent to which he still retained in specie what he had received. Such a case would be a contract essentially improvident, calculated to facilitate the squandering of the infant's estate, and which the other party knew or ought to have known to be such, for to make such a contract at all with an infant would be fraud. But if the contract was free from any fraud or bad faith, and otherwise reasonable, except that the price paid by the infant was in excess of the value of what he received, his recovery should be limited to the difference between what he paid and what he received. Such cases as Medbury v. Watrous, 7 Hill (N. Y.) 110; Sparman v. Keim, 83 N. Y. 245; and Heath v. Stevens, 48 N. H. 251, really proceed upon this principle, although they may not distinctly announce it. The objections to this rule are, in our opinion, largely imaginary, for we are confident that in practice it can and will be applied by courts and juries so as to work out substantial justice."

275 Wanisch v. Wuertz, 79 Misc. Rep. 610, 140 N. Y. Supp. 573. 276 In re Huntenberg (D. C.) 153 Fed. 768; Manning v. Johnson, 26 Ala. 446, 62 Am. Dec. 732; Myrick v. Jacks, 39 Ark. 293; Wuller v. Chuse Grocery Co., 241 Ill. 398, 89 N. E. 796, 28 L. R. A. (N. S.) 128, 132 Am. St. Rep. 216, 16 Ann. Cas. 522; Sanger v. Hibbard, 2 Ind. T. 547, 53 S. W. 330; Betts v. Carroll, 6 Mo. App. 518; Zuck v. Turner Harness & Carriage Co., 106 Mo. App. 566, 80 S. W. 967; Star v. Watkins, 78 Neb. 610, 111 N. W. 363; Bedinger v. Wharton, 27 Grat. (Va.) 857; Abernathy v. Phillips, 82 Va. 769, 1 S. E. 113; Gannon v. Manning, 42 App. D. C. 206.

277 Millsaps v. Estes, 137 N. C. 535, 50 S. E. 227, 70 L. R. A. 170, 107 Am. St. Rep. 496. And see Shirk v. Shultz, 113 Ind. 571, 15 N.

But as to the restoration of specific property in a damaged or deteriorated condition, the authorities are again out of agreement. Some cases hold that on the disaffirmance of a contract by which an infant and an adult have exchanged property, the adult is entitled to have back the property which he gave to the infant, if it is of any value, but he must take his property in whatever condition it may be, and if it has been injured or impaired by the infant while in his possession, there is no remedy, unless perhaps in an action of tort, as where the infant got the property by falsely representing himself to be of full age.278 But other cases maintain that the infant should not be permitted to rescind his contract at all unless he is able to return the property in substantially as good condition as when he received it,270 or else that he must compensate the adult for injuries to the property sustained while it was in his possession.280 But where an infant seeks to rescind a settlement made by his guardian for less than the amount due on his judgment against a corporation, on the ground of fraud and want of consideration, he is not obliged to tender the amount paid, in order to recover the balance due, since he would be entitled to that much in any event.281 It should also be observed that a firm cannot maintain an action on a policy of fire insurance, without first offering to restore what has been received under a settlement for the loss, although the same was effected by a partner who was a minor and through the fraud of an agent of the company.282

§ 311. Same; Property Lost, Sold, or Dissipated. The authorities generally agree that it is not a condition of the disaffirmance by an infant of a contract made during his infancy that he shall return the consideration received by

278 Carpenter v. Carpenter, 45 Ind. 142; Price v. Furman, 27 Vt. 268, 65 Am. Dec. 194; White v. Branch, 51 Ind. 210.

279 Riley v. Mallory, 33 Conn. 201; Bartholomew v. Finnemore, 17 Barb. (N. Y.) 428.

280 Wheeler & Wilson Mfg. Co. v. Jacobs, 2 Misc. Rep. 236, 21 N. Y. Supp. 1006.

281 Winter v. Kansas City Cable Ry. Co., 160 Mo. 159, 61 S. W.

282 Brown v. Hartford Fire Ins. Co., 117 Mass. 479.

283

him if, prior to such disaffirmance and during infancy, the specific thing received has been disposed of, wasted, or consumed, so that it cannot be restored, or if the money. paid to him under the contract has been dissipated or spent.2 As stated in one of the cases, where an infant has lost or squandered the consideration of a contract during his minority, and desires on coming of age to set the contract aside, he cannot be required to purchase the right of reclaiming his own by abstractions from his estate. 284 More especially is this rule applicable where the money received under the contract has been expended in the purchase of necessaries, and the minor has no estate whatever when he seeks to avoid the contract.285 In pursuance of the rule, it is held that a minor may repudiate a note given by him for borrowed money without returning the amount of the loan, unless it appears that the money loaned is still in his possession.286

312. Effect of Avoidance.-When a voidable contract of an infant is disaffirmed by him, it is rendered void ab initio by relation, and the parties are thereby returned to

283 MacGreal v. Taylor, 167 U. S. 688, 17 Sup. Ct. 961, 42 L. Ed. 326; Manning v. Johnson, 26 Ala. 446, 62 Am. Dec. 732; Bell v. Burkhalter, 176 Ala. 62, 57 South. 460; Reynolds v. McCurry, 100 Ill. 356; Wuller v. Chuse Grocery Co., 241 Ill. 398, 89 N. E. 796, 28 L. R. A. (N. S.) 128, 132 Am. St. Rep. 216, 16 Ann. Cas. 522; Dill v. Bowen, 54 Ind. 204; First Nat. Bank v. Casey, 158 Iowa, 349, 138 N. W. 897; Burgett v. Barrick, 25 Kan. 526; Gray v. Grimm, 157 Ky. 603, 163 S. W. 762; Thing v. Libbey, 16 Me. 55; Monumental Building Ass'n v. Herman, 33 Md. 128; Chandler v. Simmons, 97 Mass. 508, 93 Am. Dec. 117; Bartlett v. Drake, 100 Mass. 174, 97 Am. Dec. 92, 1 Am. Rep. 101; Brown v. Hartford Fire Ins. Co., 117 Mass. 479; Barr v. Packard Motor Car Co., 172 Mich. 299, 137 N. W. 697; Braucht v. Graves-May Co., 92 Minn. 116, 99 N. W. 417; Brantley v. Wolf, 60 Miss. 420; Lake v. Perry, 95 Miss. 550, 49 South. 569; Tower-Doyle Commission Co. v. Smith, 86 Mo. App. 490; Carr v. Clough, 26 N. H. 280, 59 Am. Dec. 345; Green v. Green, 69 N. Y. 553, 25 Am. Rep. 233; Petrie v. Williams, 68 Hun, 589, 23 N. Y. Supp. 237; Dickerson v. Gordon, 52 Hun, 614, 5 N. Y. Supp. 310; Shurtleff v. Millard, 12 R. I. 272, 34 Am. Rep. 640; Abernathy v. Phillips, 82 Va. 769, 1 S. E. 113; Bedinger v. Wharton, 27 Grat. (Va.) 857; Young v. West Virginia, C. & P. Ry. Co., 42 W. Va. 112, 24 S. E. 615.

284 Southern Cotton Oil Co. v. Dukes, 121 Ga. 787, 49 S. E. 788. 285 Featherstone v. Betlejewski, 75 Ill. App. 59.

286 Miller v. Smith, 26 Minn. 248, 2 N. W. 942, 37 Am. Rep. 407.

287

291

the same situation as if the contract had not been made.2 If the infant paid out money under the contract, as, for instance, on a purchase of property, he may maintain an action to recover it back on repudiating the contract,288 subject, of course, to the duty of restoring the property to the other party in so far, at least, as it still remains in his hands or under his control.289 Thus, on rescinding a contract of partnership, an infant may recover back all money advanced by him, less what he had received from the firm.290 Further, in such an action by the infant to recover his money, the defendant cannot be allowed, as a counterclaim, damages from the plaintiff's failure to carry out the contract," nor the expenses imposed upon him by the plaintiff's act in repudiating the contract, as, for example, where an infant bought property at auction, paid part of the price, and then disaffirmed the purchase, making it necessary to advertise and sell the property again.292 Nor can the defendant in such an action recoup for the value of the use of his property while in the plaintiff's possession.293 If the minor parted with his property under the contract, as, in the case of a sale or exchange of it, the title to it revests in him on his disaffirming the contract, and trespass will not lie against him for taking the property into his possession.294 If the property has been sold or otherwise disposed of by the other party, the infant may sue for and recover the value of it.295 And one may replevin a horse seized by de

287 Shrock v. Crowl, 83 Ind. 243; Rice v. Boyer, 108 Ind. 472, 9 N. E. 420, 58 Am. Rep. 53; Smoot v. Ryan, 187 Ala. 396, 65 South. 828; Yancey v. Boyce, 28 N. D. 187, 148 N. W. 539; Myers v. Rehkopf, 30 Ill. App. 209; Grissom v. Beidleman, 35 Okl. 343, 129 Pac. 853, 44 L. R. A. (N. S.) 411, Ann. Cas. 1914D, 599.

288 Lemmon v. Beeman, 45 Ohio St. 505, 15 N. E. 476; Millard v. Hewlett, 19 Wend. (N. Y.) 301; Cooper v. Allport, 10 Daly (N. Y.) 352; Lipschitz v. Korndahl (Sup.) 136 N. Y. Supp. 2. But compare Rice v. Butler, 160 N. Y. 578, 55 N. E. 275, 47 L. R. A. 303, 73 Am. St. Rep. 703.

289 See, supra, §§ 310, 311.

290 Sparman v. Keim, 83 N. Y. 245.

291 Radley v. Kenedy (City Ct.) 14 N. Y. Supp. 268.

292 Shurtleff v. Millard, 12 R. I. 272, 34 Am. Rep. 640.

293 McCarthy v. Henderson, 138 Mass. 310.

294 Shipman v. Horton, 17 Conn. 481.

295 Grace v. Hale, 2 Humph. (Tenn.) 27, 36 Am. Dec. 296.