
    Mary Rice, by Edward Devine, her Guardian ad Litem, Appellent, v. William Allen Butler, Respondent.
    
      Infants — a Mayóle is not cm article of necessity to a- domestic—rescission, and, . recovery of money paid.on account for it—payment for its use not required,.
    
    A bicycle is not an article of necessity for a girl seventeen years of age, who is ■working as a domestic and living with her employer; and she may rescind a conditional executory contract for its sale, providing for payment in weekly installments, and may recover the payments-which she has made thereon, without any deduction being made for her use of the machine or for damages which have been occasioned to it by such use. . '
    Adams and Ward, JJ., dissented.
    Appeal by the plaintiff, Mary Rice, by. Edward Devine, her guardian ad litem, from a judgment of the County Court of Onomdaga county, entered in the office of the clerk of the county of Onondaga on the 17th day of April, 1897, affirming a judgment of the Municipal Court of Syracuse which dismissed the complaint, with costs.
    This action was begun October 22, 1896, in the Municipal Court of Syracuse to recover twenty-six dollars and twenty-five cents paid ■ on ah executory contract which the plaintiff had rescinded because of her infancy.
    June 18,1896, the plaintiff, then an infant seventeen years of age, and employed as a domestic in a family in which she resided, entered into a written executory contract with the defendant, under the name of “ Reuben Woods Son’s Co.,” by which he agreed to sell and she to purchase a bicycle for forty-five dollars; fifteen dollars were paid on the execution of the contract and the remainder- was payable in weekly installments of one dollar and twenty-five cents, the title to the wheel to remain in the vendor until the purchase price should be fully paid, with the right to take and sell the machine in case it was not kept in good repair, or in case the stipulated weekly payments were not made. On or about September 20, 1896, the plaintiff having paid, as she testified, weekly payments amounting to eleven dollars and twenty-five cents — which, with the fifteen dollars paid down, aggregates twenty-six dollars and twenty-five cents—returned the wheel to the defendant, asserting that she had been defrauded, and demanded .the repayment of the twenty-six dollars and twenty-live cents. The defendant took the wheel, but refused to return the money, or any part of it, asserting that the use of the wheel was worth more than the sum paid, and that it had been damaged by use to the extent of fifteen dollars.
    
      George F. Quinn, for the appellant.
    
      Thomas Woods, for the respondent.
   Follett, J.:

An infant not under guardianship may enter into a valid contract for a necessary article, but a bicycle is not an article of necessity for a girl seventeen years of age working as a domestic and living in the house of her employer.

The truth of this proposition is so apparent that it hardly needs the support of judicial authority, but nevertheless the question has been decided. (Pyne v. Wood, 145 Mass. 558.) In the case cited a boy seventeen years of age residing with his father and working in a factory which was more than a mile from his father’s house, purchased a bicycle on th e installment plan, and paid sixty-four dollars on the contract out of his own wages. After using the wheel for some months he returned it and brought an action to recover the'amount paid. It was asserted that the wheel was an article of necessity to enable the boy to aide to and from his labor, and it was shown that he was allowed but one hour for his dinner, which was insufficient time to enable him to walk from the factory to his father’s house, dine and return, and that by means of the wheel he could do this. Nevertheless it was held that the wheel was not a necessity. 'The boy could have carried his dinner. It is not' every article that may be convenient for an infant in the employment in which he is engaged, or which may greatly contribute to his pleasure, that is a necessary article within the rules of law allowing infants to contract for necessaries. The rules relating to contracts by.infants are not harmonious, arising from the fact that hard cases make bad law, and courts have too frequently relaxed the' wise rules of the common law so as to do justice between litigants in particular cases. A few rules are well settled. An infant under guardianship cannot bind himself for necessaries to the same extent as an infant having no .guardian. It does not appear that the plaintiff in the case at bar has a general guardian, and the case is governed by the rules applicable to executory contracts by infants not under guardianship for the purchase of unnecessary articles. Formerly it was doubted whether an infant could rescind his contract, and it was held by some of the reported cases that he could not, because by reason, of his infancy he could no more annul than execute a contract — that he could not. elect to rescind until he reached his majority. But it is now settled in this State that an infant' may rescind an executory contract, for personal services, one. relating to personalty, or one for the payment • of money. (Chapin v. Shafer, 49 N. Y. 407; Sparman v. Keim, 83 id. 245; Petrie v. Williams, 68 Hun, 589.) The bicycle not being' a necessity, the contract under which it was purchased being, executory, the wheel having been returned to the vendor, and the contract rescinded before the period fixed for the performance of the contract, the question arises whether the infant may recover the amount which she paid on the contract, without diminution for the use of.the machine or for damages thereto occasioned by its use.

A witness sworn in behalf of the defendant testified that the fair rental value of the wheel for three months was thirty dollars; and that,, by, reason of the condition in which it was returned, it was worth fifteen dollars less than when it was delivered to the plaintiff. In Pyne v. Wood (supra) the infant returned the bicycle after using it some ■ months, and it was held that he was entitled to recover the amount paid on the contract. ■ McCarthy v. Henderson (138 Mass. 310) arose out of a contract with an infant for the purchase of - a “ curtain side barge ” which he used in his business of transporting passengers. By the contract the infant agreed to pay $50 per month for the use of thébargé and the vendor agreed that, when the infant should pay $675, the title should pass to the vendee. The infant paid $175 and used the. barge four months' when the vendor took possession of it because of the infant’s failure to make the stipulated payments. The infant sued 'to recover the amount paid because of his infancy, and it was held that he was entitled tO' recover the full amount without deducting the value of the use. of the barge during four months.

The learned counsel for the defendant cites in opposition to these authorities: Gray v. Lessington (2 Bosw. 257); Bartholomew v. Finnemore (17 Barb. 428); Crummey v. Mills (40 Hun, 370); Hangen v. Hachmeister (17 J. & S. 34); Wheeler & Wilson Mfg. Co. v. Jacobs (2 Misc. Rep. 236). In the cases in which it was held that the infants must restore or make good all they had received under the contracts, the judgments were placed upon the ground that the contracts were executed, and that the rule which prevails as to executory contracts was not applicable to executed contracts. In the case last cited the vendor brought replevin against the infant purchaser because of his failure to pay for the machine purchased. It was held that the action was not founded on the contract, was a tortious one, and that the sums paid could not, for that reason and for the further reason tha't the contract was executed, be counterclaimed. Such were the reasons’ given although they do not seem to lit the facts, and they are far from satisfactory or logical.

In Crummey v. Mills (supra) the plaintiff did not part with his own property, but with the property of his mother. After the plaintiff became of age he repudiated the transaction and brought an action to recover his mother’s stock put up as collateral to his contract, which stock was never owned by him, and it was held that he could not recover the value of his mother’s stock put up as a margin. It was not asserted that the plaintiff ever had title to the shares, or that his mother had ever assigned her right of action to him. On this ground the judgment firmly rests.

In Hangen v. Hachmeister (*supra) an infant, in the course of his business, mortgaged his chattels. The infant died and his personal representative sold the mortgaged property to the plaintiff, who had notice that the defendant held a mortgage thei;eon. The infant never repudiated the chattel mortgage, neither did his representative, and it was held that the purchaser from the representative could not repudiate the infant’s contract, and was not ’ entitled to recover the value of the property in an action for its conversion against the mortgagee in possession.

In Bartholomew v. Finnemore (supra) an infant exchanged a promissory note for thirty dollars, a bank note for five dollars, and a wagon, for a horse. The infant was twenty years of age-, was in business for himself, and his father was present when the exchange was made, approved of it, and indorsed the note which was given in exchange. The infant kept the horse a month, returned it and demanded the property which he had given in exchange. The defendant refused to accept the horse or return the property. The infant sought to recover the value of the property in an action of trover. The case was tried in a Justice’s Court, where a verdict and judgment were rendered for the defendant^ but the judgment was reversed by a County Court. On the plaintiff’s appeal the judgment' of the County Court was reversed and the judgment of the Justice’s Court affirmed upon two grounds: (1) That the contract was made witli the approval of the natural guardian of the infant, his father, and (2) that the contract having been completely executed the infant could not recover the value of the articles which he exchanged without restoring the horse in as good condition as when he took it. It-was shown on the trial that the horse, by misuse, was greatly depreciated in the infant’s hands before it was tendered to the defendant. Hone of these cases are decisive of the case at bar.

In Green v. Green [69 N. Y. 553) an infant conveyed his real estate, received the consideration and squandered it. Upon arriving at age he brought an action of trespass against the vendee for entering on the land, and it was held' that he could recover without making restitution, as it appeared that he had squandered the money, and, therefore, it was impossible for him to return it.

In Allen v. Lardner (78 Hun, 603) an infant who owned a building lot, and was engaged to be married, contracted for the erection of a dwelling thereon for $.887. The house was built, and it Was ■conceded that it was worth the contract price, and suitable for the home of the infant'and his wife, who occupied it for some time and afterwards leased it. They gave a bond and mortgage for the contract price, which, when they became of age, they repudiated on the' ground that they were infants when executed.. In an action brought for the foreclosure of the mortgage it was held that it was not a lien upon the property, and a judgment was rendered for the defendants.'

In Kane v. Kane (13 App. Div. 544) an infant mortgaged his lands, received and squandered the money. After he became of age he disaffirmed the mortgages, and it was held that they were not a lien on the infant’s land, and that the restitution of the consideration of the mortgages was not a necessary condition precedent to the effectual disaffirmance of them.

It is apparent that, under the authorities, the vendor in the case at bar could not have maintained an action against the infant vendee for the purchase price of the wheel, or for the use thereof or for damages not willfully inflicted but occasioned by the use of the wheel. • It is difficult to see, as was said in McCarthy v. Henderson (supra), that the vendor is any more entitled to recover by way of counterclaim on such a cause of action than he would have been had he brought an action. Experience has shown .that it is necessary to enforce these rules for the protection of infants and incompetents in order to jnotect them from being defrauded of their estates, and while they -work occasional injustice they are necessary for the protection of such persons.

In England, by a recent statute (“ Infant’s Belief Act,” 37 & 38 "Viet. cha]D. 62), it is enacted that contracts entered into by infants for money borrowed and for various purchases are void and cannot be validated after the infant has arrived at full age. If it shall be held that infants or incompetents must make restitution before actions can be maintained for the recovery of their property, their estates will be exposed to depletion by unprincipled persons. A vendor who sells on the installment plan a bicycle to a girl seventeen years of age, employed as a domestic, should be content to stand on his strict legal rights.

The judgment should be reversed, with costs.

Hardin, P. J., and Green, J., concurred; Adams and Ward, JJ., dissented. '

Hardin, P. J. (concurring):

Inasmuch as I made the decision at Special Term in Green v. Green (7 Hun, 492; S. C. affd., 69 N. Y. 553), and concurred in. the opinion in Petrie v. Wiliam's (68 Hun, 589), and prepared the opinion in Kane v. Kane (13 App. Div. 544), and am satisfied with the logic found in the opinion of Follett, J., and respect the authorities cited by him in that opinion, I fully concur in his opinion and vote to reverse the judgments below. . ■ '

Adams, J. (dissenting):

In the view which I take of this case it is not important to determine whether or not the bicycle which the plaintiff purchased of the defendant is to be regarded as a necessary article, the real question being whether the former can avail herself of her infancy to perpetrate a wrong upon the latter.

It is doubtless true that the law of this State relating to contracts, made by infants is not in all respects in harmony with that of other States, and it may, perhaps, be asserted with entire propriety that the decisions of the courts of this State upon the subject are not in perfect accord with themselves'; but nevertheless there is one principle especially applicable to the facts' of this case .which has received very general recognition and which, as stated by so eminent authority as Chancellor Kent, is this: “ If an infant pays money on his contract and enjoys the benefit of it and then avoids it when he comes of age, he cannot recover back the consideration paid.” (2 Kent’s Com; *240.) (See, also, Chitty on Cont. 149-579, n. 1.)

This language is quoted with approval by Beardsley, J., in Medbury v. Watrous (7 Hill, 110), and he adds that, “the rule is otherwise where the infant has not derived any benefit from his contract, for then he may avoid it and recover back what he has paid.”

The same rule also received recognition at the hands of so able a jurist as Chief Justice Savage in M'Coy v. Huffman (8 Cow. 84), where it was said that, “Although the executory contracts of an infant are voidable by him at his election, yet if he pay money on a contract made by him, though he avoid the contract on arriving at. mature age, he cannot recover the money back, and so it was expressly adjudged .in Holmes v. Blogg (8 Taunt. 508),” and it has been repeatedly followed and adopted since. (Gray v. Lessington, 2 Bosw. 257; Bartholomew v. Finnemore, 17 Barb. 428; Crummey v. Mills, 40 Hun, 370; Wheeler & Wilson Mfg. Co. v. Jacobs, 2 Misc. Rep. 236.)

In the case last cited it was expressly held that, where an infant attempts to rescind a contract of sale by returning the property purchased, he must place the vendor in statu quo / and that he cannot return the property without making good the actual damage to it.

The cases of Gray v. Lessington and Bartholomew v. Finnemore (supra) likewise declare the same principle. 'In the latter of these cases the infant had purchased a horse and paid for.it in property which was delivered to the vendor. After retaining the horse fora month, during which time, by reason of its misuse by the infant, its value was greatly lessened, the infant tendered the horse back to the vendor and demanded that he should return the property which had been delivered in payment therefor; and it was held that, inasmuch as the infant had enjoyed the use of the horse and by improper usage had reduced its value, there would be no equity in permitting him to avoid his contract and reclaim his property without restoring, the consideration or its equivalent. It is said, however, that this case differs from the one at bar, in that the contract there sought to be rescinded was executed.' I can see no reason why that fact should require the application of any different rule, nor am I able to discover, after a careful reading of the case, that it exerted any particular influence upon the mind of the court; but even if such a distinction were of any importance, the contract which the plaintiff is here seeking to avoid was certainly executed to the extent of the payments which were actually made thereon (Wheeler & Wilson Mfg. Co. v. Jacobs, supra); and this being so, the distinction is obviously more imaginary than real. But, however this may be, the facts of this case justly require the application of the rule as stated by Chancellor Kent.

The plaintiff purchased the bicycle of the defendant upon the installment plan without disclosing the fact that she was an infant. The purchase price of the wheel was forty-five dollars, of which .sum fifteen dollars was paid at the time of the purchase and about ten dollars additional was thereafter paid in installments. After using the wheel for upwards of three months during the season of 1896, the plaintiff became tired of it, and then, suddenly remembering that she was an infant, offered to return it, and demanded that the money which had been paid upon the purchase price should be restored to her. .

It is undisputed that the deterioration in the value of the wheel resulting from its use for this period of time was about thirty dollars, and that its rental value during the same period would amount to about the same sum ; and, without making any return whatever for the injury done, and without offering to pay for the benefit derived from the use of the wheel, the plaintiff seeks to avoid he,r obligations by resorting to the defense of infancy. As was said in the case of Bartholomew v. Finnemore, there would be no equity in permitting the plaintiff in these circumstances to recover back the moneys paid npon her purchase without restoring the consideration or its equivalent.

The learned counsel for the appellant calls attention to two cases which it is claimed are in apparent hostility to the rule which has just been considered. I have examined, with some degree of care, both of these cases (one of them having been decided by this court), without discovering wherein they have any especial application to the case in hand. In one of them (Green v. Green, 69 N. Y. 556) the court was careful to state that it was not designed that the rule there adopted should be extended beyond the peculiar facts of 'that case, while in the other (Kane v. Kane, 13 App. Div. 544) the. facts, in one respect at least, were essentially different from those disclosed by the record in the case under, consideration. An infant having mortgaged his lands and squandered the money obtained upon his mortgages, after reaching his majority disaffirmed his contract, and we held that the mortgages were not liens upon the infant’s lands, and that a restitution of the moneys obtained upon the seen-' rity thereof was not a.condition precedent to disaffirmance, because — and herein lies the important distinction between that case and this—-the infant had spent his money, and thereby placed it beyond • his'power to make such restitution. In this, case, however, the plaintiff was differently situated, for the moneys which she had paid upon her contract were where they could be applied in satisfaction • of the injury done to the property which she had assumed to pur, chase, and if she is unwilling to have them thus applied, the law should make such application for her.

I am clearly of the opinion that the judgment appealed from ■ should be affirmed.

Ward, J., concurred.

Judgments of the County Court and of the Municipal Court reversed, with costs.  