
    The Wheeler & Wilson Manufacturing Co., Resp't, v. Esther Jacobs, App'lt.
    
      (New York Common Pleas,
    
    
      General Term,
    
    
      Filed February 6, 1893.)
    
    1. Replevin—Infants.
    An action of replevin on the ground of wrongful detention may be' maintained against an infant.
    3. Same—Conditional sale.
    Plaintiff sold a machine to defendant on the instalment plan, title to remain in plaintiff until it was paid for in full; and in case of failure to pay instalments, and plaintiff being compelled to take back the property, it was agreed that the sums paid were to be regarded as money paid for the use of the machine. In replevin for the machine after default, Held, that defendant was not entitled to repayment of the sums paid; that the conditional bill of sale must be regarded as an executed contract so far as payments actually made were concerned, and infants cannot recover on such contracts.
    Appeal from a judgment of the district court of the city of Hew York for the third judicial district
    
      Leopold Leo, for app’lt;
    
      John Holden, for resp’t
   Bookstaver, J.

This is a replevin action brought to recover the possession of one of plaintiff’s sewing machines which defendant obtained on a contract or conditional bill of sale in the usual form, by the terms of which the title to the machine remained in the plaintiffs until it was paid for in full, and in event of the defendant not paying the instalments agreed upon and the plaintiffs were compelled to take back the property, the instalments actually paid were to be regarded as money paid for the use of the machine. The defense interposed was infancy and a counterclaim for the amount paid on the property. There was no dispute but that default had been made in the payment of the instalments. But it was contended that the action was prematurely brought because the defendant was an infant and no action could be maintained against her. This would be true if the action were founded upon a contract, but replevin never is. The basis of this action is a tort, and it is stated in the affidavit for the immediate claim and delivery of the property, that the defendant wrongfully -detained the same. This is abundantly supported by the evidence in the case, for it appears that when the marshal at the plaintiff’s request sought to obtain possession of the machine under the claim and delivery papers, the defendant and her mother not only refused to give up the machine but endeavored to secrete the same and claimed that it had been sold. This, if true, would have been a conversion of the property and a wrong against the plaintiff. Infants are liable for their torts and may even be indicted for the same. “If an infant is old and cunning enough,” says Lord Chancellor Cowper, “ to contrive and carry out a fraud, he ought to make satisfaction for it.” 2 Eq. Ca. Ab., 515; Badger v. Phinney, 15 Mass., 359; Homer v. Thwing, 3 Pick., 492; Cary v. Hotailing, 1 Hill, 311; Olmsted v. Hotailing, id., 317; People v. Kendall, 25 Wend., 399; Wallace v. Morss, 5 Hill, 392; Rice v. Boyer, 58 Am., 53; Schunemann v. Paradise, 46 How. Pr., 426; Eckstein v. Frank, 1 Daly, 334; Cooley on Torts, 120. Where the infant pleads his minority to escape payment of the purchase price the seller may rescind the sale and replevin the goods. Badger v. Phinney, supra.

Although an infant must be personally served with the summons, yet before a valid judgment can be obtained against her a guardian ad litem must be appointed ; that was regularly done in this case.

Appellant’s counsel contends that even if the action can be maintained, she ought to have been allowed the amount she paid upon the contract of purchase. But this we think is not sound, as it was expressly agreed it should be regarded, in case of default, as tlie value of the use of the property during the time she had it; and we cannot say that that was at all unreasonable, because it is manifest that the use of the machine must have greatly deteriorated its value. Besides the conditional bill of sale must be regarded as an executed contract as far as the payments actually made were concerned, and infants cannot recover on such contracts. Crummey v. Mills, 40 Hun, 370. The case of Green v. Green, 69 N. Y., 556, was peculiar, and the court expressly states that it was to apply only to the facts in that case. Infants cannot return property without paying actual damage to it; the vendor must be put in statu quo. Bartholomew v. Finnemore, 17 Barb., 428; Gray v. Lessington, 2 Bosw., 257. In this case, however, the defendant did not attempt to return it, but, on the other hand, sought to prevent the plaintiffs from obtaining possession of it.

The judgment should be affirmed, with costs.

Bischoff, J., concurs.  