Summary
In Bell v. Smith, 155 Miss. 227, 124 So. 331, 332, where Judge ANDERSON, speaking for the court, said: "A general objection to evidence, overruled by the trial court, will not be considered on appeal, unless it be apparent that such evidence had no probative value on any material issue in the cause.
Summary of this case from Jackson v. StateOpinion
No. 28078.
October 28, 1929.
1. REPLEVIN. Plea of not guilty in replevin action puts in issue all material facts of case.
Plea of not guilty is only plea permissible in action of replevin, and such plea puts in issue all material facts of case.
2. REPLEVIN. Under plea of not guilty in replevin action defendant may show incapacity to enter into contract which is basis of action.
Under plea of not guilty in replevin action, defendant may show incapacity to enter into contract which is basis of action in replevin.
3. INFANTS. Contract with infant is voidable, not void.
Contract with an infant is voidable, not void.
4. INFANTS. Where infant makes contract and disaffirms it on reaching majority, he must return consideration if he has not lost it during infancy.
Where an infant makes contract and disaffirms it upon reaching his majority, he must return consideration if he has not lost or squandered it during his infancy.
5. INFANTS. An infant's disaffirmance of contract, rights of parties must be determined as if contract never existed.
On disaffirmance of contract by infant, rights of parties are to be determined as if contract had never existed.
6. Infants. Insane persons. If buyer was incapable because of infancy or insanity of entering into contract and afterwards rescinded it, seller was entitled to return of automobile on condition that he first restore to buyer automobile traded in or its value.
If buyer at time of buying automobile was incapable on ground of infancy or insanity of entering into contract and afterwards rescinded contract, rights of parties stood as if contract had never been made, and seller was entitled to return of automobile on condition that he first return to buyer automobile traded in or its value.
7. REPLEVIN. Plaintiff in replevin must have right to immediate possession of property sought to be taken ( Hemingway's Code 1927, section 3248).
Under Hemingway's Code 1927, section 3248 (Code 1906, section 4214), plaintiff in replevin must have right to immediate possession of property sought to be taken.
8. APPEAL AND ERROR. Appellant cannot on appeal challenge truth of recitals in record.
Appellant cannot on appeal challenge truth of recitals in record to effect that it was agreed between parties that affidavit and continuance should be read to jury in lieu of testimony of witness.
9. APPEAL AND ERROR. General objection to evidence, overruled by trial court, could not be considered on appeal, where such evidence was relevant to issue.
General objection, overruled by trial court, to evidence that defendant, through his father, rescinded sales contract which was basis of action in replevin, could not be considered on appeal, where such evidence was relevant to issue.
APPEAL from circuit court of Wayne county. HON. J.D. FATHEREE, Judge.
J.W. Backstrom, of Leakesville, for appellant.
Contracts made with minors are not void, per se, but are only voidable under our law. Such contracts are valid and binding between the parties until rescinded by the minor, or his legal representative. No third party can raise the defense of infancy, but such defense is a personal defense and is strictly limited to the infant himself, his heirs or legal representatives.
Southern Auto Co. v. Holifield, 145 Miss. 51, 111 So. 86; Jackson et al. v. Banks, 144 Miss. 392, 109 So. 905.
Under the law it was incumbent upon the appellee to deliver back the chevrolet car before demanding the return of the old car traded in.
Rhyne v. Miller, 133 Miss. 463, 97 So. 758.
An executed contract of an infant must be disaffirmed or become obligatory after maturity.
Edmunds v. Mister, 58 Miss. 765.
Where an infant makes a voidable contract and disaffirms it upon obtaining majority, he must return the consideration if he has not lost or squandered it during infancy.
Bantley v. Wolf, 60 Miss. 420; Harvey v. Biggs, 68 Miss. 60, 8 So. 274; 10 L.R.A. 62; Lake v. Perry, 95 Miss. 550, 49 So. 569.
Upon the rescission of a contract the general rule is that parties must be put in statu quo.
Elmire Simonton v. W.H. Bacon, Guard, 49 Miss. 582; Harvey v. Biggs, 68 Miss. 60; 8 So. 274; Brantley v. Wolf, 60 Miss. 433; Evans v. Morgan, 69 Miss. 328, 12 So. 270.
Where the appellee retained the title to the automobile in question under the conditional sales contract set out in this record, the title never passed to the appellee and the appellant was entitled to recover the automobile.
Ferguson v. Bobo, 54 Miss. 121; Evans v. Morgan, 69 Miss. 328, 12 So. 270; Brantley v. Wolf, 60 Miss. 433; Harvey v. Biggs, 8 So. 274, 68 Miss. 274; Rhyne v. Miller, 133 Miss. 463, 97 So. 758; Bates v. Hyman, 28 So. 567.
When a minor has reached the stage of maturity in years and physical appearance, calculated 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 the contract, he will not be heard at any future time to deny that he was of full age at the time of the contract, where the party dealing with him has dealt with him believing him of full age.
Ostrander v. Quin, 84 Miss. 230, 36 So. 257; Commander v. Brazil, 88 Miss. 668, 41 So. 487, 9 L.R.A. (N.S.) 1117; Lake v. Perry, 95 Miss. 550, 49 So. 569.
J.M. Stevens and R.T. Mobley, both of Jackson, C.C. Smith, of Richton, and A.G. Busby, of Waynesboro, for appellee.
Not guilty is the only plea allowed in an action of replevin (Code 1906, sec. 4232; Hemingway's Code 1927, sec. 3266.)
Bennett v. Holloway, 55 Miss. 211; Munn v. Potter, 111 Miss. 180, 71 So. 315; Porter Hardware Co. v. Peacock, 129 Miss. 129, 91 So. 856; Hogan et al. v. Commercial Credit Co., 150 Miss. 653, 116 So. 298; 31 C.J., Infants, sec. 72.
When the infant exercises his privilege to avoid his contract, whether during infancy or upon arrival at full age, the contract becomes void ab initio, and the rights of the parties are as if it never existed.
R.C.L., Infants, sec. 23; 3 Page on Contracts, sec. 1622; Woolbert v. Lee Lumber Co., 151 Miss. 56, 117 So. 354.
Conflicts in the testimony are for the jury, not for the court.
Bell v. Southern Ry. Co., 94 Miss. 440, 49 So. 120; Cantrell v. Lusk, 113 Miss. 137, 73 So. 885; 32 C.J. 759, sec. 563; Mullins v. Cottrell, 41 Miss. 325.
A person whose mental condition is weak, to the extent of being incapable of managing his own affairs and understanding the nature and character of his acts, may obtain relief against the improvident contracts into which he may have been misled to his injury.
32 C.J. 729, sec. 498 (3); Williston on Sales, sec. 35; Bunch v. Shannon, 46 Miss. 525; Simonton v. Bacon, 49 Miss. 582; Fitzgerald v. Reed, 9 S. M. 94; Fore v. Alabama, etc., R. Co., 87 Miss. 211, 39 So. 493, 690; Wooten v. Mobile, etc., R. Co., 89 Miss. 322, 42 So. 131; Bryant v. Enochs Lbr. Co., 94 Miss. 454, 49 So. 113; 32 C.J. 761, sec. 567.
Where there is a conflict in the testimony the matter should be submitted to the jury.
Sunflower Bank v. Pitts, 108 Miss. 380, 66 So. 811; Porter v. Nesmith, 124 Miss. 517, 87 So. 5; Taylor v. DeSoto Lbr. Co., 137 Miss. 829, 102 So. 260, 103 So. 82; Birchett v. Hundermark, 145 Miss. 683, 110 So. 237; Sackler v. Slade, 148 Miss. 575, 114 So. 396; 13 C.J. 246, sec. 15.
The general rule is that misrepresentation of his age by the infant does not affect his privilege of disaffirming.
Williston on Sales, sec. 26; Brantley v. Wolfe, 60 Miss. 420; MacGreal v. Taylor, 167 U.S. 688, 695, 42 L.Ed. 326.
The rule in this state is that where the infant is of mature years and is guilty of actual, active and willful fraud in misrepresenting his age, he cannot disaffirm, provided the usual elements of estoppel are present.
Commander v. Brazil, 88 Miss. 668, 41 So. 497; Ostrander v. Quin, 84 Miss. 230, 36 So. 257, 105 Am. St. Rep. 426; Lake v. Perry, 95 Miss. 571; 31 C.J. 1007, sec. 35; Demourelle v. Piazza, 77 Miss. 433, 27 So. 623.
Any act showing unequivocally a renunciation of, or a disposition not to abide by, the contract made during minority is sufficient to avoid it.
31 C.J. 1068, sec. 165; Edmunds v. Mister, 58 Miss. 775; Watson v. Peebles, 102 Miss. 725, 59 So. 881.
The law requires restoration of the consideration, as a condition precedent to the right of an infant or insane person to disaffirm.
Williston on Sales, sec. 19; 31 C.J. 1022, sec. 71; 3 Page on Contracts, sec. 1622; Scott v. Scott, 29 S. Car. 414, 7 S.E. 811; Morris v. Holland, 10 Tex. Civ. App. 474, 31 S.W. 690; Williston on Sales, sec. 610.
Where appellant made only a general objection to the introduction of evidence, and the recital in the record shows that it was introduced as agreed testimony, it must be taken as true.
Bessler Movable Stairway Co. v. Bank of Leakesville, 140 Miss. 537, 106 So. 445; Foster v. City of Meridian, 150 Miss. 715, 116 So. 820; Carrier Lbr. Co. v. Boxley, 103 Miss. 489, 60 So. 645; Liles v. May, 105 Miss. 807, 63 So. 217.
If an infant has lost or squandered the consideration during minority, this is nothing more than the law expects of him, and he cannot be required to purchase the right of reclaiming his own by still further abstractions from his estate.
Woolbert v. Lee Lbr. Co., 151 Miss. 56, 117 So. 354.
When a minor disaffirms his contract each party was entitled to receive back what had been delivered.
Ross P. Curtice Co. v. Kent, 89 Nebr. 496, 131 N.W. 944, 52 L.R.A. (N.S.) 723; 16 A.L.R. 1475.
Argued orally by R.T. Mobley and J.M. Stevens, for appellee.
Appellant brought this action of replevin against appellee in the circuit court of Wayne county to recover of appellee a Chevrolet automobile. There was a trial resulting in a verdict and judgment for appellee; from that judgment appellant prosecutes this appeal.
Appellant sold appellee a new Chevrolet automobile. The sale was evidenced by a conditional sales contract, in which the title to the automobile was retained in appellant until payment of the purchase price. The contract of sale recites a cash payment of two hundred twenty dollars, which represented a Ford car traded in by appellee at an agreed value of one hundred thirty-two dollars, and appellee's check on a bank for eighty-eight dollars. This left a balance due on the purchase price of four hundred fifty-six dollars, which was to be paid in twelve monthly installments of thirty-eight dollars each. Appellee's bank check for eighty-eight dollars was dishonored, and appellant thereupon demanded of appellee the amount overdue on the purchase price of the car. Appellee failed to make payment; appellant then brought an action of replevin for the car; to the action of replevin appellee interposed the plea of "not guilty." Under that plea appellee made two defenses to the action — infancy and insanity — either of which, if established, avoids the contract.
The court overruled appellant's objection to the evidence introduced by appellee to establish those defenses; that action of the court is assigned and argued as error.
Appellant's position is that these defenses were not admissible under the plea of "not guilty." "Not guilty" is the only plea permissible in an action of replevin; special pleas are not allowed in such actions. The plea of "not guilty" in an action of replevin puts in issue all the material facts of the case. Porter Hdw. Co. v. Peacock, 129 Miss. 129, 91 So. 856; Munn v. Potter, 111 Miss. 180, 71 So. 315; Hogan v. Commercial Credit Co., 150 Miss. 653, 116 So. 298. And under the plea of "not guilty" the defendant may show his incapacity to enter into the contract which is the basis of the action in replevin. Odom v. Harris, 34 Miss. 410.
Appellee was an adult when this cause was tried. He introduced evidence on the trial, tending to show that when appellant demanded of him the payment of the overdue installments of the purchase price of the car, appellee, through his father, offered to return the car to appellant upon condition that appellant return to appellee the Ford car, or its value, which appellee had traded in to appellant as part of the down payment on the car purchased by him; and that appellant declined to accept that proposition — that immediately after the proposition was made by appellee's father, appellant brought replevin for the Chevrolet car. The evidence on behalf of appellant was in conflict with that of appellee as to whether appellee's father made such proposition to appellant.
A contract with an infant is voidable, not void. Where an infant makes a contract, and disaffirms it upon reaching his majority, he must return the consideration if he has not lost or squandered it during his infancy. Harvey v. Briggs, 68 Miss. 60, 8 So. 274, 10 L.R.A. 62; Lake v. Perry, 95 Miss. 550, 49 So. 569. When an infant exercises the privilege to avoid his contract, whether during infancy or upon arrival at full age, the rights of the parties are as if the contract never existed. 14 R.C.L., p. 242, section 25. On disaffirmance of the contract by the infant, the rights of the parties are to be determined as if the contract had never existed. Page on Contracts, vol. 3, section 1622. The same principles apply to contracts made by persons non compos mentis. Woolbert v. Lee Lbr. Co., 151 Miss. 56, 117 So. 354.
Under those principles, if, when appellee bought the Chevrolet car from appellant, he was incapable, upon either of those grounds, of entering into the contract, and afterwards rescinded the contract, the rights of the parties stood as if the contract had never been made. That being true, appellant was entitled to the return of the Chevrolet automobile, on condition, however, that appellant first restore to appellee the Ford car or its value, which appellee traded in to appellant as part of the down payment for the Chevrolet car. This was a condition precedent to appellant's right to recover the Chevrolet automobile.
Under section 4214 of the Code of 1906 (Hemingway's Code 1927, section 3248), a plaintiff in replevin must have the right to the immediate possession of the property sought to be taken. This was the rule at the common law, and is the rule under the statute. Lloyd v. Goodwin, 12 Smedes M. 223; Frizell v. White, 27 Miss. 198; Buck v. Payne, 52 Miss. 271; Johnson v. Sanders, 148 Miss. 472, 114 So. 334.
When appellee rescinded the contract (if it was rescinded) appellant was not entitled to the immediate possession of the Chevrolet car unless he restored, or offered to restore, the Ford car or its value. There was evidence tending to show that appellant did neither. The issues of fact were submitted to the jury under instructions more favorable to appellant than he had the right, under the law, to ask; and there was no harmful error done appellant in giving instructions for appellee, nor in refusing instructions requested by appellant. The verdict of the jury can be justified under the law applied to the case which appellee's evidence tended to establish.
The appellee made application for a continuance of the cause on account of the absence of Clyde Wally, claimed to be a material witness for appellee. In his application for a continuance, appellee set out the facts which he expected to prove by the absent witness. The court refused the application for a continuance, but permitted appellee, over appellant's objection, to read to the jury appellee's affidavit, embodying the facts which appellee expected to prove by the absent witness.
Appellant assigns and argues as error that action of the court. We think appellant's contention is without merit, for the reason that the court reporter's transcribed notes of the history of the trial show that it was agreed between the parties that the affidavit for continuance be read to the jury in lieu of the testimony of the witness Wally personally in the presence of the jury. Appellant contended that no such agreement was made. It is too late, however, for appellant to challenge the truth of the recitals in the record in this cause. Appellant's objection to the reading of the affidavit was a general one. Appellant failed to point out the specific ground of objection. The purpose of the testimony of the absent witness was to show that appellee, through his father, rescinded the contract. Such evidence was relevant to the issue. A general objection to evidence, overruled by the trial court, will not be considered on appeal, unless it be apparent that such evidence had no probative value on any material issue in the cause. Foster v. City of Meridian, 150 Miss. 715, 116 So. 820; Bessler Stairway Co. v. Bank of Leakesville, 140 Miss. 537, 106 So. 445.
Affirmed.