
    Joshua W. Brown & William H. Brown v. William McCune.
    The defendant, in an action upon a contract, is not estopped from pleading his infancy, by any declaration as to his age made by him, at the time of the contract.
    The doctrine of estoppel is not applicable to infants.
    AYhen the complaint is upon a contract as the cause of action, evidence of a fraudulent representation or intent, as a ground for-the recovery of damages, cannot be received, although the fraud is alleged in the-reply.
    The cause of -action set forth in' the complaint, .cannot be altered by the reply; ■. nor is the objection waived by the defendant’s proceeding to trial without demurring.
    The denial .by the judge, upon the trial, of a motion to amend a pleading, is pot the subject of an exception.
    B is settled law, that no action as for a deceit, can be maintained against an infant, even when he has attained his age, grounded upon a false representation of his age.
    The observance of the rule seems to be necessary to the protection, which the law designs to throw around infants.
    (Before- Sandfokd, Mason, and Paine, J. J.)
    (Oct. 15;
    Nov. 15, 1851.)
    This was an action for the price of goods, sold and delivered to the defendants, in June, 1846. The only defence set up in the answer, was infancy. The plaintiffs, in their reply, took issue upon the infancy, and also averred, that if the defendant was an infant at the time of the sale, he falsely and fraudulently represented himself to be of age, and thereby induced the plaintiffs to sell, and deliver to him the goods.
    Upon these pleadings, the cause was brought to a trial before Mr. Justice Duer, and a jury, on the 16th of May, 1851. Upon the trial, an aunt of the defendant, who was called as a witness, swore that he was born in her house, on the 14th October, 1825, and consequently did not attain the age of twenty-one, until the 14th October, 1846, and was an infant at the time of the sale made to him by the plaintiffs.
    The plaintiffs then offered to prove that the defendant fraudulently represented himself to be of age, at the time of the purchase of the goods, and thereby induced them-to make the sale.
    The judge said that the admissions of the defendant, in respect to his age, might be received as evidence of the fact, but that he would not receive them, as creating an estoppel, or as evidence of fraud.
    To this decision, the counsel for the plaintiffs duly excepted.
    The plaintiffs' then offered to prove that the defendant purchased goods fraudulently, with an intention not to pay for them—the judge rejected the evidence, and the plaintiffs, by their counsel, again excepted.
    Under the restriction laid down by the judge, the admissions of the defendant • were then given, in evidence, and it was clearly proved, that at the time of the sale of the goods, he represented himself to be of full age, and that it was upon the faith of this representation, that the sale was made. It was also proved, that the defendant had made an assignment of his property, which he had ratified after lie came of age, and that this assignment included the goods purchased from the plaintiffs.
    ; The counsel for the plaintiffs then moved to amend the complaint, by inserting the necessary allegations, to enable them to recover damages, for the unlawful detention of the goods. The judge denied the motion, but gave them liberty to appeal, as from the denial of a motion at chambers, to the general term.
    The counsel on both sides having summed up, the judge told the jury,,that the only question for their determination, was, whether the defendant was, or was not, of age, when the goods were, purchased. The jury found a verdict for the defendant, but added a recommendation to him, “ to pay his honest debts.”
    The plaintiffs appealed from the judgment at special term, upon this verdict, and the cause was now heard upon the exceptions taken at the trial.
    
      J. J. Tyler for plaintiffs and appellants, moved for the reversal of the judgment, and a new trial, relying upon the following points and authorities :—
    1st. Where a party, either by his declaration or conduct, has induced another person to act in a particular manner, he will not be permitted to deny the truth of his admission. (Dezell v. Odell, 3 Hill, 221.)
    2d. This rule applies to; infants and femmes coverts, and is particularly applicable to this case; for the defendant, by his declaration that he was of age, procured the credit, and was guilty of gross fraud. (Cowen v. Hill’s Notes, p. 207; 1 Story’s Equity, § 385; 2 Kent Comm., p. 239; Jennings v. Whitaker, 4 Monroe R. 51 & 53; Davis v. Tingle et al., 8 B. Monroe, 542; Hall v. Tinmans, 2 Richdn. S. C. 120; Story’s Rep. 478; Savage v. Foster, 9 Modern R. 35; Becket v. Cordley, 1 Brown Chy. R. 358; Lord Teynham v. Webb, 2 Vesey, sen., 212; Evroy v. Nicholas, 2 Equity Cases, 489; Fonblanque, Equity 4 (Am. Ed.), 80 Note, z.; In Bacon’s Abrg. Title Infancy, I. 3; Briston v. Eastman, 1 Esp. R. 172; 2 Sugd. on Vend. 515.)
    . 3d. The code has abolished the distinction between legal and equitable relief, so far as the remedy is concerned. And the allegations in this complaint, answer and reply, being all true, the court must give such relief as the facts warrant, whether it be in its nature legal or equitable. See opinions, &c., collected in Voorhees’ Code of Practice, p. 55 and 111 to 118,. and Code, § 69.
    4th. An infant who fraudulently obtains goods upon credit with intent not to pay for them, is liable. (Wallace v. Morss, 5 Hill, 391.)
    5th. The defendant having assigned the-property before-he was of age, and having ratified it after, (see foL 17,) cannot now repudiate the contract—because he in effect retains the property by placing it beyond his control. (Kitchen v. Lee, 11 Paige, 107.)
    6th. The defendant’s omission to demur to the new matters in the reply, precludes him from objecting to its insufficiency on the trial; and if the'new matter is proved, plaintiff must succeed. (Code, § 155, § 168 ; Monell’s Practice, p. 158; Mann v. Fairchild, 5 Barb. 108; Bogardus v. Trinity Church, 4 Paige, 178.)
    7th. If necessary, the court should permit plaintiffs to amend the pleadings in furtherance of justice, and on liberal terms.. (Code, § 173; Voorhees’ Practice, 152, and cases cited; Balcom v. Woodruff, 7 Bank. 13.)
    8th. If the plaintiffs are wrong, they should be permitted to-discontinue, without costs, and the judgment be vacated. (Van Buren v. Fort, 4 Wend. 209..),
    
      Geo. W. Stevens, for defendant, made and argued the following points.
    I. The last two allegations of the plaintiff’s reply are inconsistent with the allegations of the complaint, and they were not entitled to give evidence under them.
    II. Evidence of the representations of the defendant as to his; age was admitted, and there was no request on the part of the-plaintiffs to the court, to charge that the defendant was estopped,, by such representations. There is no exception by the plaintiffs, to the charge of the judge.
    III. The denial of the motion to amend was not an appropr'iate ground for exception. (Roth v. Schloss, 6 Barb. 308; White v. Stevenson, 4 Denio, 193.)
   By the Court.

Sandford, J.

The plaintiffs excepted to the decision of the judge, at the trial, on two grounds :

1. Because he held that the defendant's false representation, as to his age, was not conclusive upon him by way of estoppel; and,

2.. Because that fact was not received as evidence of fraud.

There was a further offer to prove that the defendant purchased the goods fraudulently, with an intention of not paying for them, which was, undoubtedly, founded upon the same misrepresentations.

1. In respect of the estoppel. We are not aware that any case has gone the length of holding a party estopped, by any thing he has said or done while he was under age ; and we think it would be repugnant to the principle, upon which the law protects infants from civil liabilities, in general. It is true, that courts of equity have sometimes refused relief, on the ground of fraud or suppression of the parties seeking it, while they were minors ; and we do not deem it necessary to dissent from those decisions. At the same time, we are clear that the doctrine of estoppel is inapplicable to infants. In nearly every ease where litigation has ensued, in consequence of the contracts of infants, such contracts have been made, either on the express statement, or the tacit assumption, that such infants were of full age ; and in the latter instance, the suppression of the truth is as base, as the falsehood, in the former. Yet there is no case to be found in which it has been held, that the infant, on such a statement or assumption, was bound by his contract. If he were thereby estopped from denying his majority, the contract would, of course, be adjudged valid and obligatory upon him.

A contrary doctrine would overturn the whole law relative to the contracts of infants. From, holding that an infant was estopped by a falsehood as to his age, the next step would be to hold him estopped by a suppression of the fact that he was under age, when he was silent on that point, while he knew that the party with whom he was contracting supposed him to be of age. There is no difference in principle between the direct, and the inferential falsehood; the one is as fraudulent, as the other. Then, if we hold that an infant, buying merchandise on his statement that he is twenty-one years of age, is bound by his own contract, we must next hold that an infant executing a deed or mortgage of his real estate, is bound by it, because the act assumed that he was legally capable of executing such an instrument, and he omitted to inform the grantee, that his age incapacitated him from so doing.

Note.—Infants not bound by any forfeiture, even in obligation for necessaries. Ch. Litt. 172; and Tindal, Ch. J., in Cooper; Overton in Bing. 252. See 4 Sand. Ch. R. 37, 43.

We think, that the judge was right in holding that the defendant was not estopped, by his statement as to his age.

2. In the next place, ought the judge to have received that fact as evidence of fraud in obtaining the goods ?

The first objection to this is found in the circumstance- that the plaintiffs did not bring their action for damages by reason of fraud. The complaint is simply for goods sold and delivered. .The reply, it is true, alleges the false representation as to the defendant’s age, and that by that, and other fraudulent pretences, he obtained the goods. But that does not obviate the objection. It is in the complaint, and not in the reply, that we are to look for the cause of action. If the plaintiffs had intended to change their ground of action from a demand upon contract, to one for a fraud, they should have amended their complaint. The statement of the fraud for the first time in the reply, did not avail to make it a cause of action. This objection is fatal to the offer to prove the purchase with the fraudulent intent of not paying for the goods, as well as to the rejection of the false-representation as warranting of itself a recovery.

The application to amend was addressed to the discretion of the judge, and his denial of the motion is not the subject of an exception.

If, however, the complaint had been amended, so as to make it a claim for damages by reason of the false representation as-to the defendant’s age, on the score of fraud, it would not have enabled the plaintiffs to recover.

We believe the law remains as it was laid down in Johnson v. Pie, 1 Kel. 905 and 913 (S. C. on its first argument in 1 Lev. 169), which was an action on the case for a fraudulent representation, by the defendant, that he was of full age, whereby he induced the plaintiff to lend him money on a mortgage, when, in fact, he was only twenty years and six months old, and he afterwards avoided the mortgage for infancy. After a verdict for the plaintiff, judgment was arrested, on the ground, that the action could not be maintained for such a false statement, made by an infant. It is stated in that case that the same point was held the previous term, in the case of Grove v. Nevil.

These decisions have remained the law in Ehgland to the present day (Macpherson on Inf. 482), and we are disposed to acquiesce in them, as well adapted to maintain the protection, which the common law has thrown around infants.

The judgment at the special term must be affirmed.  