Dickerson v. Gordon — 24 N.Y. St. Rep. 448

Majority

p. 448

Charles Dickerson, App’lt, v. Milton Gordon, an Infant, by Guardian ad litem, Resp’t.

(Supreme Court, General Term, Second Department,

Filed May 13, 1889.)

Headnote

■Contract—Infancy—Duty of infant on rescission.

In an action against an infant on contract: Held, that where it does not appear that the contract was not a beneficial pne to the infant, nor that his infancy was known to the other party, nor that it was not in his power to return the consideration, upon a disaffirmance of the contract by the infant, it is prima facie his duty to return the consideration' he has received.

In February, 1888, the defendant sold and delivered to the plaintiff a horse, wagon and harness, at the agreed price of thirty-three dollars.

The defendant was twenty years of age.

About July 1, 1888, the defendant borrowed the horse and harness of the plaintiff, with the intention not to return them, and refused to surrender them to plaintiff on demand.

The plaintiff had paid twenty-three dollars of the pur-

p. 449

chase money, and, at the time of his demand, offered to pay the balance of ten dollars, which defendant refused.

The plaintiff then brought this action in justice’s court to recover chattels, and was successful.

The defendant appealed to the Suffolk county court, and •obtained a reversal of the justice’s judgment, and from that judgment or reversal thé plaintiff now appeals.

Timothy M. Grifflng, for app’lt; Payne & Benjamin, for resp’t.

Upon disaffirmance by an infant of a contract, it is jarima facie his duty to return the consideration he has received. To hold otherwise would make infancy “not a shield, but a sword.”

In Green v. Green ( 69 N. Y., 553 ), it affirmatively appeared that the consideration money had been wasted, and the infant had no other property with which to repay.

Under the peculiar circumstances of that case, among which were the fact that the parties were father and son, and the infancy known to exist, it was held that the return, •of the consideration was not required to enable the infant to recover his land. But the court were careful to state that they did not intend to extend the rule beyond the facts then before the court.

We do not regard that case as sustaining the decision below. Here, it does not appear that the contract was not a beneficial one to the infant, nor that his infancy was known to the other party, nor that it was not in his power to return the consideration.

The property sold was perishable in its nature, as compared to land; and if the infant had not use for it, the sale, apparently, was for his benefit.

Upon the facts shown, we think the judgment rendered before the justice of the peace was right.

Judgment of county court reversed, with costs.

All concur,