Opinion
4 Div. 438.
September 5, 1961. Rehearing Denied October 17, 1961.
Appeal from the Circuit Court, Houston County, Keener Baxley, J.
Lee McInish, Dothan, for appellant.
Sale by minor of an automobile is binding subject to repudiation by the minor. Keller v. Ray Motor Co., 22 Ala. App. 252, 114 So. 422. Avoidance of a contract made by an infant is personal and cannot be extended for the benefit of others. Standard Motors, Inc. v. Raue, 37 Ala. App. 211, 65 So.2d 829. An infant cannot legally appoint an agent and contract appointing an agent or attorney is void. Ware v. Cartledge, 24 Ala. 622, 60 Am.Dec. 489; Philpot v. Bingham, 55 Ala. 435; Glass v. Glass, 76 Ala. 368; Smoot v. Ryan, 187 Ala. 396, 65 So. 828; Sims v. Gunter, 201 Ala. 286, 78 So. 62. The law presumes that injury results from the erroneous admission of evidence unless the entire record affirmatively shows absence of injury, since the court cannot know that in arriving at the verdict the jury did not consider the improper evidence. Tallassee Falls Mfg. Co. v. Parks, 2 Ala. App. 278, 56 So. 588; Tennessee Coal, Iron R. Co. v. Kelly, 163 Ala. 605, 50 So. 1008.
J. Hubert Farmer, Dothan, for appellee.
A disaffirmance of the contract by an infant is largely a question of intention which must be determined by all the circumstances indicating a purpose to be no longer bound by the contractual undertaking. Tatum v. Montgomery Banking Co., 33 Ala. App. 186, 31 So.2d 311. Likewise, a plea of infancy is a sufficient disaffirmance as in the filing of a suit by the infant. Smoot v. Ryan, 187 Ala. 396, 65 So. 828.
This is an appeal from a judgment for $150 in favor of a minor against the buyer of an automobile. The action was for conversion because of the inability of the buyer to restore the car to the minor on his claimed disaffirmance of his sale.
Appellant's brief gives the facts thus:
March 14, 1959, appellee sold a 1949 Ford automobile to appellant for $75. March 16 or 17, appellee's father went to appellant's place of business and offered $75 or $80 for the return of the automobile. The automobile had been sold at that time. "Appellee personally never attempted to recover the automobile nor did he advise Appellant that he was disaffirming the contract of sale." Suit was filed April 7.
Appellant's brief, in argument, quotes the son as testifying, "I told him to go see if he could get the car back."
On motion for new trial the court admitted error in permitting evidence of the plaintiff's father (also next friend in the action) acting to disaffirm for his son.
This we do not consider error for either or both of two reasons: (1) The father merely carried his son's message and tender, in nowise seeking to bind his son to a further bargain, the son already having decided on disaffirmance; (2) the father could act for his son either (a) because be presumptively is his son's next friend, other things equal, or (b) because under the "modern" view an infant may act by an agent. Restatement, Agency 2d, § 20c (Vol. 1, p. 91), citing Woodson v. Hare, 244 Ala. 301, 13 So.2d 172; Stone, Liability for Damage Caused by Minors, 5 Ala.L. Rev. 1, at 28, 29; Williston, Contracts (2d Ed.), § 227A (Vol. 2, p. 12, fn. 1).
Thus, we need not rely, as did the court below, on Smoot v. Ryan, 187 Ala. 396, 65 So. 828, for the view that the filing of an action (as distinguished from a "suit" in equity for rescission) is ipso facto a disaffirmance. It seems somewhat incongruous to have a cause of action which does not arise (because there is no conversion before avoidance by the infant) until the complaint is filed for its redress. Betts v. Carroll, 6 Mo. App. 518.
Affirmed.
On Motion for Rehearing.
The appellant urges that under our opinion an infant could appoint an agent to purchase and so put disaffirmance beyond his reach.
Such a rule is not within the premised facts of this case which is solely concerned with the mode of disaffirmance. Regarding this, the appellee has called our attention to Judge Carr's views in Tatum v. Montgomery Banking Co., 33 Ala. App. 186, 31 So.2d 311 (infant's sale of a mortgaged car might evidence a disaffirmance of a prior chattel mortgage).
The expression used there — albeit dictum — is that of established authority to the effect that disaffirmance is largely a question of intention. Intention uncommunicated is only a state of mind. But seemingly the slightest outward act showing the mental act is enough to support the trial court unless the evidence preponderates otherwise. See 43 C.J.S. Infants § 75.
Application overruled.