Opinion
No. 28242.
February 19, 1952. Rehearing Denied March 17, 1952.
T. Douglas Moore, Clayton, and Paul F. Niedner, St. Charles, for appellant.
B. H. Dyer, St. Charles, for respondents.
This is an action by a minor to recover money that he paid for an automobile. It is against Delbert Lewis and Lewis Motor Company, a corporation, the alleged sellers of the automobile, and the holder of certain notes that the plaintiff gave in payment of the purchase price. The plaintiff claims to have rescinded his contract and seeks to recover $100 against Delbert Lewis and the Lewis Motor Company, the sellers of the car. His claim against them is predicated upon an allegation that he paid them that amount in cash. His claim against defendant Tuttle is that he gave the sellers notes in addition to the cash payment and that the notes were sold by the sellers of the car to Tuttle to whom the plaintiff has paid $316.51, and for this sum he seeks judgment against Tuttle. The trial was by the court without the aid of a jury and resulted in a judgment for the defendants from which the plaintiff prosecutes this appeal.
The petition is in two counts, alleging in the first count that he purchased a Chevrolet automobile from Delbert Lewis for which he paid $100 in cash and signed notes for the balance. It is further alleged that Lewis incorporated his business under the name of Lewis Motor Company and that the plaintiff returned the Chevrolet because it was not as represented and was allowed a credit of $175 on the purchase price of a 1937 Ford. The total purchase price of the Ford was $525 and notes were signed by the plaintiff for the balance owing. It is averred that the plaintiff is a minor and has rescinded his contract and prays judgment on this count for $100 against Lewis and Lewis Motor Company.
The second count of the petition states that the notes signed by the plaintiff were sold to Claude S. Tuttle and that the plaintiff paid to him the total sum of $316.51. It also alleges that plaintiff is willing to return the Ford to either of the defendants and the petition concludes with a prayer for judgment against Tuttle for the amount mentioned in the second count.
Each of the defendants filed a separate answer in the nature of a general denial.
The plaintiff testified that he was twenty years old at the time of the trial and that in 1947, when he was eighteen years of age, he purchased a Chevrolet automobile from Delbert Lewis who was doing business in St. Charles, Missouri, under the name of Lewis Motor Company. Plaintiff agreed to pay $375 for the Chevrolet and gave Lewis $100 in cash and notes payable monthly for the balance. He received a notice signed by the St. Charles Finance Company, informing him of the manner in which his payments were to be made, and he sent them one payment of $29.64.
In the same month that he purchased the Chevrolet he took it back to the Lewis Motor Company because its motor did not properly function and Lewis agreed to fix it. After several months plaintiff was told that repair parts were not obtainable but that he could have a 1937 Ford for $350, and that there would be credited the amount that Lewis Motor Company received from the sale of the Chevrolet. It was then that the plaintiff took the Ford in controversy. He received another notice from St. Charles Finance Company, informing him that his payments would be $45.21 per month and he paid them monthly sums totaling $361.51.
On cross-examination plaintiff stated that before he had any negotiations relative to the purchase of an automobile from defendant Lewis he had talked to a young man who worked with him. This man's name was Fehr, and at that time he was driving a Chevrolet. The plaintiff expressed some interest in buying the Chevrolet and Fehr told him that it belonged to Lewis Motor Company and that arrangements could be made for the plaintiff to buy it. It was this Chevrolet that the plaintiff later purchased at the start of his transactions with defendant Lewis.
After the plaintiff had defaulted in payments on the Ford defendant Lewis came to see him and asked him where the car was. Plaintiff did not tell him but instead directed Lewis to his lawyer. A letter was introduced in evidence from plaintiff's lawyer to the St. Charles Finance Company, which stated that Sassenrath was a minor and demanded that the St. Charles Finance Company pay him $446.15. It was stated in the letter, "If you agree to pay such amount, we will turn back to you the 1937 Ford." The booklet of the St. Charles Finance Company in which Sassenrath's payments had been recorded was put in evidence showing that he had paid a total of $316.51. A birth certificate was also introduced showing the plaintiff's date of birth to be October 14, 1929.
This was all of plaintiff's pertinent evidence, and when he rested his case each defendant separately moved that the cause be dismissed as to them on the grounds that the evidence was not sufficient to sustain an action against them. These motions were overruled and the defendants offered no evidence on their own behalf.
Thereafter the court found for the defendants and stated in a memorandum filed that the case was an action in equity and that the plaintiff could not recover because he had not revealed his age and had concealed the whereabouts of the automobile.
With certain exceptions not here involved, an infant cannot bind himself absolutely by contract and for that reason contracts made by him during his infancy may be disaffirmed or avoided by him. He may then recover the consideration with which he has parted, and this may be done either at law or in equity as the nature of the transaction may require. Where the infant in disaffirming his contract seeks the appointment of a receiver or other equitable relief, it is properly an action in equity. Moser v. Renner, Mo.App., 179 S.W. 970. And where, as here, he seeks nothing more than a money judgment it is an action at law. Freiburghaus v. Herman Body Co., Mo.App., 102 S.W.2d 743.
There is some difference between the pleaded purchase price and the evidence in relation to it, but it is clear that the St. Charles Finance Company received from the plaintiff $316.51, and it is also clear that the plaintiff paid Lewis $100. It is evident that he entered into the contract during his infancy and that by reason of this he may rescind it. There is no evidence that he misled the defendant about his age when he purchased the automobile, and for an infant to be estopped from rescinding a contract by misrepresentation made during infancy "there must have been unequivocal misrepresentation of such a nature to justify reliance thereon, and all the circumstances of the case bearing upon this, and the benefit on the one hand and the circumstances on the other must be considered." Gerkey v. Hampe, Mo.App., 274 S.W. 510, loc. cit. 514; Ridgeway v. Herbert, 150 Mo. 606, 51 S.W. 1040; 90 A.L.R. 1445.
The plaintiff could therefore rescind the contract under the evidence presented here, but, in order to give effect to a rescission or disaffirmance of his contract, he is obliged to restore to the other contracting party the fruits of the contract within his possession at the time. He cannot disaffirm and retain the benefits derived from the contract he seeks to disaffirm. The exception to this is where the infant has, during infancy, lost, squandered, or otherwise disposed of the consideration which he acquired, but that is not present here. Sassenrath's contract was with the Lewis Motor Company from which he purchased the Ford. While disaffirming the agreement, he did not return the automobile even when Lewis called upon him and sought to get the car back. It is true that a letter from plaintiff's lawyer was sent to the St. Charles Finance Company, offering to return the Ford to it upon the payment of $446.15; but the car was not purchased from it and there is nothing to indicate that the plaintiff ever paid it as much as the amount demanded. It is also true that plaintiff states he is willing to return the car to either of the defendants, but, in order to effectuate his rescission of the contract, it is first essential that he return the Ford to the party from whom he purchased it. Freiburghaus v. Herman Body Co., Mo.App., 102 S.W.2d 743; Betts v. Carroll, 6 Mo.App. 518; Tower-Doyle Comm. Co. v. Smith, 86 Mo.App. 490; Downing v. Stone, 47 Mo.App. 144; Zuck v. Turner Harness Carriage Co., 106 Mo. App. 566, 80 S.W. 967.
Upon properly effectuating his disaffirmance he may recover the money he paid on the notes even though the person to whom the money was paid was not a party to the original contract, Downing v. Stone, supra, for when he has properly disaffirmed the contract it is void ab initio. Windisch v. Farrow, Mo.App., 159 S.W.2d 392.
It should also be noted that we fail to find any evidence of record that defendant Claude S. Tuttle is doing business as the St. Charles Finance Company. His answer was a general denial, which put in issue all the allegations in the petition. One of these allegations was that Claude S. Tuttle was doing business as the St. Charles Finance Company. His name is mentioned in the evidence, but it is in no place connected with the company which received the payments, nor is there any evidence that payments were made to him. With this void in the evidence it is obvious that the court could not properly enter a judgment against him.
The respondents assert that the action brought could not have been adjudicated in favor of the plaintiff because of misjoinder of parties defendant, in that the plaintiff sought a judgment for $100 against two defendants and a judgment for $316.51 against the third defendant. We do not believe that there is any merit in this contention, for Mo.R.S. 1949, § 507.040, V.A.M.S., provides: "All persons may be joined in one action as defendants if there is asserted against them jointly, severally, or in the alternative, any right to relief in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all of them will arise in the action. A plaintiff or defendant need not be interested in obtaining or defending against all the relief demanded. Judgment may be given for one or more of the plaintiffs according to their respective rights to relief, and against one or more defendants according to their respective liabilities." The right here arose out of the "same transaction" and could be brought against the sellers and the holder of the notes, even though one or the other was not "interested * * * in defending against all the relief demanded". Carr, Missouri Civil Procedure, Ch. 6, Para. 65, p. 147.
It follows from all of the foregoing that the plaintiff had not given effect to his rescission of the contract at the time he brought the action for the sums that he had paid and there was no evidence of payment made to defendant Tuttle.
For these reasons, the judgment of the court is for the right parties, and the Commissioner recommends that it be affirmed.
The foregoing opinion of WOLFE, C., is adopted as the opinion of the court.
The judgment of the circuit court is accordingly affirmed.
BENNICK, P. J., and ANDERSON and RUDDY, JJ., concur.