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to the protection which the law gives him. If he has enough
of such articles, more cannot possibly be necessary for him,"

1 Ibid., L. E. 4 Ex. 32. And see, on Hands v. Slavey, 8 T. R. 578 ; Brayshaw

the same question, Chapide v. Cooper, 13 v. Eaton, 7 Scott, 183 ; Cook v. Deaton,

M. & W. 252, 258 ; Maddox v. Miller, 1 3 C. & P. Hi; Steedinan v. Rose, Car. k,

M. & S. 738; Wharton v. Mackenzie, 5 M. 422; Peters v. Pleniing, 6 M. & \V.

Q. B. 606 ; Harrison v. Fane, 1 M. & G. 46 ; Brooker v. Scott, 11 M. & W. 67.

550; Burghart v. Hall, 4 M. & W. 727; With the exception of these two last-

Burghart v. Angerstein, 6 C. & P. 690; named cases, the general current of the

Renaux v. Teakle, 8 Ex. 380 ; Dalton v. decisions is that the question of neces-

Giltb, 5 Bing. N. C. 198 ; Rainsford v. saries is for the jury-
Fenwick, Carter, 215 ; Greene v. Chester, 2 19 q. b. Div. 509, July 27, 1887.

2 Rolle, 144 ; Ive i;. Chester, Cro. Jac. » l. k. 3 Ex. 90 ; L. R. 4 Ex. 32.

560 ; Wittingham v. Hill, Cro. Jac. 494 ;



120



COMMENTARIES ON SALES.



[book II.



Lord Esher said that in Ryder v. Wombwell ^ the Court of Ex-
chequer Chamber had before them cases which were inconsist-
ent with the view taken in the court below, but, holding as they
did that the goods supplied could not possibly be necessaries,
there was no occasion for them to decide whether this evidence
was relevant. A divisional court has since, in Barnes v. Toye,^
decided that the evidence is relevant, and I entirely agree with
the decision.^



1 L. R. 4 Ex. 32.

2 13 Q. B. Div. 410.

!» Johnston V. Marks, 19 Q. B. Div. at
p. 511. And see further, the cases cited
in the previous note, and Foster v. Red-
grave, 4 Ex. 85, in note ; Bainbiidge v.
Pickering, 2 W. Blk. 1325; Brayshaw v.
Eaton, 5 Bing. N. C. 231 ; 7 Scott, 183.

In Jenner v. Walker, 19 L. T. N. s.
399, the decision in Ryder v. Wombwell,
3 Ex. 90, 4 Ex. 32, was very much re-
marked on. Cockburn, C. J., there said :
"I really cannot understand it, unless it
means that it is to be a question of law
for the judge to determine whether the
articles disputed are or are not necessaries.
If that is to be taken to be law, of course
I must act upon it; but I should certainly
have j)referred the law as it was previously
understood to be, — that it was for the
jury to say what articles were reasonably
necessary with reference to the position of
the defendant, the infant." Coleridge,
Q. C. (counsel in the case), in reply to
the chief justice, said : "I am bound to
say that I think Ryder v. Wombwell does
in effect come to what you have stated;
namely, that it is not for the jury, but for
the judge, to say whether an article is
necessary. That, certainly, is what it
came to, for the jury found the solitaires
(shirt-fasteners) necessary, and the court
directed judgment to be entered for the
defendant. That, certainly, is (|uite con-
trary to a long series of decided cases, and
to the law as it has always been understood
to be; but that is what it comes to." Cock-
burn, C. J., assented to this ; and though
he expressed himself as bound by the
holding in Ryder v. Wombwell, he so
emphatically dissented from it that he
left the question to the jury as to the
articles being necessaries for which the
action was brought ; and the jury's find-
ing in thj matter agreeing with his own,
the decision in Ryder v. Wombwell was
not allowed in affect the case.

The other point decided in Ryder v.
Wombwell (supra) was that where an in-
fant is sued for the jirice of goods supplied
to him on credit, evidence to prove that at
the time the goods were supplied to him
he was already sufficiently provided with



articles of a similar description, is inadmis-
sible, unless it is also shown that the plain-
tiff had knowledge of the fact. In Barnes
r.Toye, 13 Q. B. Div. 410, Ryder •!;. Womb-
well is dissented from on both points ;
and, as we have seen in the text, the
holding in Barnes v. Toye was fully ap-
proved and acted on in Johnston v. Marks,
19 Q. B. Div. 509. In Barnes v. Toye,
13 Q. B. Div., at p. 412, Field, J., dealt
with both these questions. He says :
"We have to deal with the question
whether an infant can bind himself for
things which are necessaries, in the sense
of belonging to the class of necessaries,
and being suitable to his position in life,
if they are not really necessaries in the
sense that he could do without them. In
Ryder r. Wombwell, L. R. 3 Ex. 90, this
point was decided in favor of the trades-
man ; for the court then held (Bramwell,
B., dissenting) that evidence to show that
the infant was already sufficiently supplied
was properly rejected, as it was not i>ro-
posed to show that the plaintiff had
Icnowledge of that fact. If there had
been no authority against this decision,
I should have declined to go into the
question wiiether it was right ; but there
is such authority, both in former and in
modern times. In Bainbridge v. Picker-
ing, 2 W. Blk. 1325, and in Brayshaw v.
Eaton, 5 Bing. N. C. 231, the question of
whether the defendant was already pro-
vided with clothes was considered as per-
tinent to the inquiry whether those which
the plaintiff supplied were necessaries ;
and the learned judges who heard the
case of Foster v. Redgrave, L. R. 4 Ex.
35, n. 8, could not distinguish that case
from the two last mentioned, which they
accordingly followed. Under these cir-
cumstances, I am of opinion that tlie ques-
tion should have been left to tlie jury
whether these were necessaries, taking
into consideration not merely the charac-
ter of the goods, but the question whether
the defendant was in possession of such
a supply of goods of the same descripti(m
that he was not in want of these." The
same points are very clearly covered by
the judgment, in the same case, of liopes,
J., wlio says: "A contract by au infant



PA.RT I.]



SALES WITH INFANTS.



121



A deed by an infant to secure the repayment of money ad-
vanced for necessaries is voidable. Therefore, when the plain-



for the supply of goods to him cannot be
enforced unless the articles be necessaries,
the policy of the law being directed to the
protection of infants. In point of fact,
a tradesman dealing on credit with an
infant does so at his peril, and must lose
his money (that is, if the infant does
not voluntarily pay him), unless he can
prove that the goods supplied were neces-
saries for the infant according to his sta-
tion in life. T'hat being the law, we come
to the (question, What are necessaries ? To
determine tliis, we must take into account
what the infant had at the time of giving
the order. For example, a watch may be
primd facie in some cases a necessary ;
but if it turned out that the infant was
already supplied with a watch or watches,
the one ordered could not be a necessary.
It is said, however, that, even if regard
must be had to the supply which the in-
fant had at the time of the order, where
it is in the tradesman's knowledge that
the infant is amply supplietl, yet this is
not the case if the tradesman is ignorant
of that fact. If this contention were cor-
rect, the protection given to the infant
would depend entirely on what might be
the state of knowledge of the tradesman,
and one effect would be to depiive the
infant of the protection intended to be
extended to him by the law. In my view
it is immaterial whether the plaintiffs did
or did not know of the existing supply,
just as it is immaterial whether they did
or did not know that the defandant was a
minor. In this particular case, evidence
as to the amount of clothes the defendant
possessed at the time when the order re-
lied on was given was admissible ; and
[covering both the points badly decided in
Kyder v. Wombwell] the jury should have
been told that in arriving at a conclusion
whether the goods sujiplied hy the i^laintiffs
were necessaries or not, they should con-
sider whether the defendant was already
sufficiently supplied."

But where it is palpable that the ar-
ticles could not be necessaries, then there
is no question for the jury, and the plain-
tiff should be nonsuited. This was the
holding in Foster v. Redgrave, L. R. 4 Ex.
35, n. 8, where the evidence showed that
the infant was already provided with an
ample wardrobe at the time the goods
sued for were ordered and supplied, al-
though the plaintiff did not know the
fact, and the rule for a nonsuit was made
absolute. The cases of Ijainbridge v.
Pickering, 2 W. Blk. 1325, and Bray-
shaw V. Eaton, 7 Scott, 183, are in accord
with this holding. See, further, Daltoo



V. Gib, 7 Scott, 183; Rolfe v. Abbott, 6
C. & P. 286 ; Ursuston v. Newcomen, 6
N. & M. 454 ; Ford v. Fothei-gill, Peake,
N. P. 229 ; Baker v. Keen, 2 Stark. 501.
The decisions in this country harmonize
with the well-decided cases in England
on both points which were misdecided in
Kyder v. Wombwell, L. R. 3 Ex. 90;
L. R. 4 Ex. 32. On the point as to the
fact of articles being necessaries being sub-
ject to be rebutted by showing that the
infant had, at the time, a sufficient sujiply,
that doctrine is as laid down by Greenleaf.
§ 366, Gr. on Ev. And, although Eng-
lish authorities are mainly cited for that
position, numerous authorities in this
country sustain it. See Rivers v. Gregg,

5 Rich. Eq. (S. C. ) 274, where the law in
the case is laid down in virtually the same
language as has been used in the latest
English cases, such as Johnston v. Marks,
19 Q. B. Div. 509; Barnes v. Toye, 13
Q. B. Div. 410, and the other cases ap-
proved b)' these. In Rivers v. Gregg,
Dargan, Ch., delivering the judgment of
the court, said ; " He who deals with
an infant is presumed to know of his
infancy. He is bound, at his own peril,
to make the inquiry. It makes no differ-
ence whether the inquiries result in correct
information or the reverse. It is no
excuse, if he honestly supposed, from his
appearance or other circumstances, that
the infant was an adult. The protection
of this defenceless class of persons would
be very inadequate, if this principle is not
further extended. The only safe rule, for
the security of infants and their estates,
is, that he who credits the infant for
necessaries, should be bound to know
whether the infant has been supplied with
a sufficient amount of those articles by
the parent or guardian, or from some
other source. The consequence, if any
other rule than this prevails, would be, that
an infant's estate might be made liable
for double the amount of necessaries that
were necessary for him. . . . The conclu-
sion is, that an infant who is furnished
with necessaries, or the means in cash of
procuring them, by his parent or guardian,
or from any other source, is, primd facie,
not liable for necessaries su{)plied by a
stranger or tradesman on a credit ; and
that the ji^^'ty ^^ho seeks to evade the
operation of the rule, and bring his claim
under an exception, must prove the desti-
tution and necessities of the infant."
Rivers v. Gregg, 5 Rich. Eq. 279, 281.
See, also, Connolly Ads. Hull, 3 McCord,

6 ; Edwards v. Higgins, 2 McCord Ch.
21 ; Jones v. Colvin, 1 McMuUan, 14 ;



122



COMMENTARIES ON SALES.



[book II.



tiff has advanced money to an infant partly in order to pay
for necessaries, and he had by deed assigned to the plaintiff his
reversionary interest as a security ; in an action brought against
the infant on his attaining twenty-one, for an account of money
advanced to him and expended on necessaries, and for repay-
ment, and also claiming that the same might be declared to be
a charge on his reversionary interest ; it was held, that, though
the plaintiff was entitled to an account and an order for repay-
ment, the deed was not binding on the infant, and the security
could not be enforced.^



Johnson v. Lines, 6 Watts & S. 80 ;
Walling V. Toll, 9 Johns. 141 ; Nicholson
V. Wilborn, 13 Ga. 467, 474 et seq. ;
Nicholson v. Spencer, 11 Ga. 607. In
this last-named case, the court say: "It
is a general rule of law, that when a
tradesman furnishes an infant with goods
on credit, it is incumbent on him to show
that the articles furnished were neces-
saries, according to the circumstances and
condition of life of such infant, before he
can I'ecover the price of the goods so
furnished. Parents and guardians are the
best judges as to what are necessaries for
their children and wards ; and whenever
a tradesman furnishes them with articles,
in addition to what their parents and
guardians have provided them, it is
incumbent on such tradesman to show a
necessity therefor, to entitle him to recover
the price of the articles so furnished. The
tradesman trusts the infant at his peril."
Nicholson v. Spencer, 11 Ga. at p. 611.
This is the long and thoroughly well-
established law of this countr\', and, as
we have intimated, accords with the estab-
lished law in England, temporarily broken
in upon by the disapproved case of Ryder
V. Wombwell, L. R. 3 Ex. 90; L. K. 4
Ex. 32.

So, too, the law in this country
agrees with that of England, that the
question as to what are necessaries is a
mixed one of law and fact. Thus, Green-
leaf correctly lays down the law of both
countries, that necessaries are such things
as are useful and suitable to the party's
state and condition in life, and not merely
such as are reijuisite for bare subsistence.
And of this the jury are to judge, under
the advice and control of the court. Gr.
on Ev. § 365. ■ The great mass of the
English cases we have cited in this note
sustain this statement of the law. The
authorities in this country are to the same
effect. Thus in Johnson v. Lines, 6 W.
& S. 80, the court holds that what are
necessaries is a question of mixed law and
fact; but that an over-supply of goods
otherwise proper ceases to be a supply of



necessaries as to the excess, and that while
the question of extravagance belongs to
the jury, where the supply has been so
grossly profuse as to shock the sense, it is
the business of the judge to say so as
matter of law, and charge that there can
be no recovery for more than was absolutely
necessary. So, in Merriam v. Cunning-
ham, 6.5 Mass. 40, Bigelow, J., said :
"It is the well-settled rule that it is the
province of the court to determine whether
the articles sued for are within the class
of necessaries, and if so, it is the proper
duty of the jury to pass upon the ques-
tions of the (piantit}', quality, and their
adaptation to the condition and wants of
the infant." See Bent v. Manning, 10 Vt.
225, 230; Stanton v. Willson, 3 Day
(Conn.), 37, 56; Owings?;. Trotter, 1 Bibb
(Ky.), 157 : Phelps v. Worcester, 11
N. H. 51 ; Swift v. Barnett, 64 Mass.
436 ; 20 Am. Jur. 283 ; Beeler v. Young,
1 McCord, 572. See as to necessaries the
late case of House v. Alexander (a. d.
1885), 105 lud. 109.

1 Martin v. Gale, 4 Ch. D. 428. See
further, on the point involved in this case,
Marlow i'. Pitlield, 1 P. Wms. 558; Jenner
V. Morris, 3 De G. F. & J. 45 ; Co. Litt.
171a; /n ?-e Howarth, L. R. 8 Ch. 415,
418 ; Maddon i'. White, 2 T. R. 159, 161;
Lumsden's Case, L. R. 4 Ch. 31. Not-
withstanding the holding in some of these
cases, it is now clear that all an infant's
contracts are voidable, except those for
necessaries, for which, for his own protec-
tion, he is personally liable even during
his minority. On the other hand, none
of such contracts are, at common law,
absolutely void, to the extent that they
cannot be ratified by the infant on attain-
ing full age. In many of the cases the
term "void" means no more than that the
infant's contract cannot be enforced with-
out ratification. See Strain v. Wright, 7 Ga.
568; Bryan r. Walton,J4 Ga. 185; Williams
?'. Brown, 34 JMe. 594; Baker v. Lovett,
6 Mass. 87 ; Oliver v. Hondlet, 13 Mass.
237 ; Whitnev v. Dutch, 14 Mass. 457 ;
Thompson y.' Hamilton, 12 Pick. 425:



PART I.]



SALES WITH INFANTS.



123



In Irvine v. Irvine ^ it was claimed that an infant's deed of real
estate was void because of his infancy. But, the Supreme Court



Edgerton v. Wolf, 6 Gray, 453 ; McCoy v.
Hutfmau, 8 Cow. 84; Aldrich v. Abrahams,
Hill & D. Supp. (N. Y.) 423 ; Stafford v.
Roof, 9 Cow. 626 ; Slocum v. Hooker, 13
Barb. 536 ; Wheaton v. East, 5 Yerg. 41 ;
Radford v. Westcott, 1 Dess. (S. C.) 596.
But where goods are sold to an infaut on
credit, and he avails himself of his infancy
to avoid payment, the vendor may reclaim
the goods, as having never parted with the
jn-operty in them. Badger v. Phinney,
15 Mass. 359. Where an infant bought a
horse, for which he paid S75 in cash and
gave a mortgage for the balance, and then
avoided the mortgage, it was held that the
seller had a right to retake the horse —
which, in the mean time, had been injured
by the infant — without refunding tlie
$75. Heath f. West, 28 N. H. 101. See
Luey V. Bundy, 9 N. H. 298 ; Hunt v.
Silk,5 East, 449 ; Holmes v. Blagg.S Taunt.
508; Corpe v. Overton, 10 Bing. 252; Farr
V. Sumner, 12 Vt. 28; Fitts v. Hall, 8
N. H. 441 ; Roberts v. Wiggiu, 1 N. H. 71 ;
Weed V. Beede, 21 Vt. 500. Where an
infant rescinds a contract made by liim for
the sale of personal property, and seeks to
reclaim the property or its value, he must
restore, or offer to restore, the consideration
received, before he can sustain an action for
the property sold. Carr v. Clough,26 N. H.
280 ; Ketchen v. Lee, 11 Paige, 107 ;
Hubbard v. Cummings, 1 Greenl. 13 ;
Taft I'. Pike, 14 \t. 409 ; Buffington v.
Gerrish, 15 Mass. 156 ; Smith v. Evans,
5 Humph. 70 ; Holmes v. Blogg, 8 Taunt.
508 ; Roberts v. Wiggiu, 1 iS\ H. 73 ;
Roof V. Stafford, 7 Cow. 182 ; Smith v.
Evans, 24 Humph. (Tenn. ) 70. Where
an infant had written her name on the
back of stock-certificates, by means of
which her guardian sold the stock, it was
held that she could avoid the sale on the
ground of infancy, even if she had signed
her name to enable her guardian to effect
the sale. Smith v. Baker, 42 Hun, 504
(a. d. 1886). See Ackley ;;. Dygert, 33
Barb. 176 ; Brown v. McCome, 5 Sandf.
224.

Parsons, in his work on Contracts
(V^ol. L p. 322), says ; "If an infant ad-
vances money on a voidable contract which
he aftenvards rescinds, he cannot recover
this money back, because it is lost to him
by his own act, and the privilege of infancy
does not extend so far as to restore the
money unless it was obtained from him
by fraud." In the late case of House v.
Alexander, 105 Ind. 109 (a. d. 1885), it
is said of this proposition that "it is not



and never was the law." It has also been
repudiated in other cases, expressly in
Robinson v. Weeks, 56 Me. 102, 104, and
in Shurtleff v. Millard, 12 R. I. 272.
See, also, Sparman v. Kerin, 83 N. Y.
245; Cooper V. AUport, 10 Daly (X. Y.),
352 ; Carpenter v. Carpenter, 45 Ind. 142;
White V. Branch, 51 Ind. 210 ; Indian-
apolis, &c. Co. V. Wilcox, 59 Ind. 429 ;
Ayers v. Bums, 87 Ind. 245 ; Eiley v.
Malloiv, 33 Conn. 201, 207 ; Price v.
Furman, 27 Vt. 268.

The statement made by Parsons, though
too broadly made, has been made by others
as well. Thus, Chitty on Contracts (6th
Am. ed.), 154, contains the following :
"An infant's right to elect whether he will
avoid or confirm a contract entei'ed into by
him during his infancy, does not neces-
sarily entitle him to recover back money
which he has paid thereon. It is indeed
a general rule that an infant cannot recover
back money paid by him, even upon a
contract which by reason of his infancy
he is not bound to complete, there being
no imposition." And Story on Sales,
§ 25 : "If an infant should purchase a
watch, and pay for it, he could not, by
disaflirming his contract, and ottering
the watch in return, found any claim to
recover the sum paid by him." So, in
Drury v. Drury, 2 Eden, 38, 71, Lord
]\Iansfield says : "Infancy never author-
izes fraud ; as, if goods were delivered to
an infant, and he embezzle them, trover
would lie against him ; or if he took an
estate, and was to pay rent for it, he
should not hold the estate, and defend
himself against payment of the rent, by
pretence of infancy. If an infant pays
money with his own hand, without a
valuable consideration for it, he cannot
get it back again." See Wilmot's Ofiinions,
226, note. In Wilson v. Kearse, 2 Peake,
196 (a. d. 1800), Lord Kenyon held the
exact principle stated by Prof. Parsons.
It was a case where an infant contracted
with the defendant to purchase of him the
goodwill and stock of a public house, and
made a deposit of £20. Refusing to coni-
plete the contract, he brought an action
for the £20. Lord Kenyon held that
though an infant was not compellable
to complete a contract, yet that when he
had paid money under it lie could not
recover it back unless he couid show that
fraud had been practised on him. If an
infant was to buy a thing not being neces-
saries, he could not be compelled to pay
for it ; but having done so, he could not



1 9 Wall. 617.



124



COMMENTARIES ON SALES.



[book II.



of the United States said, affirming the decision of the Circuit
Court : '• Whatever may have heen the doubts once entertained, it



recover back the money. The same ques-
tion came up again (a. d. 1818) in Holmes
V. Blogg, 8 Taunt. 508 ; 2 Moo. 552 ;
where the case of Wilson v. Kearse, 2
Peake, 196, not having been called to the
attention of the court, they considered it
a case of first instance. In Holmes v.
Blogg (supra), assumpsit was brought for
£157 10s. for money paid by an infant as
premium lor a lease, he having enjoyed
the premises for a short period during his
infancy, but having avoided the lease after
he became of age, quitting the premises.
The court held that he could not recover
the money so paid ; approving of the
principle laid down by Lord Mansfield in
IJrury v. Drury, 2 Eden, 60, and apparently
approved by Wihnot, C. J., that if an
infant pays money with his own hands,
without a valuable consideration, he can-
not get it back again. In delivering the
judgment, Gibbs, C. J., said : " The in-
fant avoided the lease when he came of
age, as he had a perfect right to do ; and,
having avoided the lease, he brought this
action for the money paid to the defend-
ant, on the ground that the consideration
having failed he was entitled to recover it;
. . . but another question arises, namely,
whether, supposing the lease to have been
avoided, the plaintiff could recover the
money which he has paid for it during his
infancy. I confess this action is quite new
to me, and I thought, on principle, that
it could not be maintained. . . I think
further, that, supposing this money to be
the sole property of the infant, he cannot
recover. He may, it is true, avoid the
lease ; he may escape the burthen of the
rent, and avoid the covenants; but that is
all he can do. He cannot, by putting an
end to the lease, recover back any consider-
ation which he has paid for it ; the law
does not enable him to do that." In
Warwick v. Bruce, 2 Man. & S. 205, 209,
which was an action by an infant for
breach of contract, on which the infant
paid £40, Lord EUenborough seems to
have had the same principle in view when
he says : " It occurred to me at the trial,
on the first view of the case, that as an
infant could not trade, and as this was an
executory contract, he could not maintain
an action for the breach of it; but if I had
adverted to the circumstance of its being
in part executed by the infant, for he
had paid £40, and therefore jt was most
immediately for his benefit that he should
be enabled to sue upon it, otherwise he
might lose the benefit of such payment, I
should probably have held otherwise."
Another case, which seems to have escaped



the notice of the American courts which
have discussed the question, as they have
done quite elaboratelv, is Ex parte Taylor,
4 W. R. 305. An infant paid £1200 to
B. & R. for a partnership interest iu
their business, and, before attaining his
majority, he received about £200 out of
the business. When he reached full age he
repudiated the contract, and B. & R. sub-
se([uently becoming insolvent, he sought
to prove against their estate. The proof
having been rejected, on appeal tlie de-
cision was affirmed. Knight Bruce, L. J.,
said that as there was no proof offered of
fraud on the part of the petitioner or his
advisers, the case solely depended on the
question of the validity or invalidity of
a contract by an infant, so far as any such
contract could be valid. This was a con-
tract entered into, so far as a contract



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