
    M. I. & L. B. Harris v. Bennett Musgrove.
    (Case No. 3317.)
    1. Practice.— Objections to the order of argument in the court below will not be regarded when urged for the first time on appeal.
    2. Infancy contract. — A contract with a minor is voidable only by the minor or his legal representatives.
    3. Same.— An appropriation by the father of property sold by the son during his minority wdl not relieve the purchaser from his liability to pay therefor according to . the terms of his contract, unless such appropriation be made by the direction or assent of the minor.
    4. Same.— The assertion of ownership by a minor of property (sold during his minority) aft"i" his minority has ceased, which results in preventing the purchaser from obtaining possession, is such a disavowal of his contract as will relieve the purchaser from his obligation to pay for the same; but the assertion of ownership must be distinct and unequivocal.
    5. Same.— See opinion for the act of one who contracted during minority, which was held not to amount to a disavowal of his contract.
    6. Parties.— Judgment may be rendered against one who is but a formal party to a suit, if the evidence discloses that he has incidentally received specific value in a transaction connected with the subject of litigation, for which, under the evidence and pleadings, he should account.
    Error from Atascosa. Tried below before the Hon. George H. Hoonan.
    The suit was brought by appellants to recover on a note for $2,000, made by appellee, and payable in cattle at their market value at time of delivery. The note was executed to Mrs. M. I. Harris, who-was joined as plaintiff by her husband, L. B. Harris. On it was indorsed a credit for $600, by L. B. Harris, as agent for his wife. The defense was, that the note was not the property of the plaintiffs, but of Walter T. Harris, who was a minor when it was given, but was of full age at the time of pleading; that it was given for a stock of cattle (in a specified brand), and was made payable to Mrs. M. I. Harris on account of the minority of Walter Harris. The-defendant alleged that when the note was given the maker gave-to Walter Harris a bill of sale, authorizing him to collect cattle in payment of it. It charged collusion and fraud between Walter and his father, L. B. Harris, whereby the maker had never been able to obtain possession of the cattle purchased. He averred that the payment for which the note was entitled to a credit was $645, paid in a note due defendant from L. B. Harris, and which he had surrendered on request of Walter. He averred that Walter Harris had disavowed, on reaching his majority, the contract on which the note sued on was given, and Walter Harris was made a party. Walter Harris alleged that Mrs. M. I. Harris was the legal owner of the note, and that he had never disavowed the contract, but gave, when the note sued on was given, a bill of sale of the cattle sold. The opinion regarding instructions will be understood without their insertion. The statement made by the commissioner who delivered the opinion, though made with great care, is too lengthy for adoption.
    
      J. M. Eckford and Tarleton & Boone, for plaintiff in error,
    cited on disavowal of contract, 1 Pars. on Con., p. 329, 5th ed.; Slocum v. Hooker, 13 Barb., 536; Van Bramer v. Cooper et al., 2 Johns., 279; Hartness et al. v. Thompson et al., 5 Johns., 160; Mason et al. v. Dennison et al., 15 Wend., 64; also 15 Mass., 272.
    
      D. P. Marr, for defendant in error.
   Delany, J. Com. App.—

There are eight assignments of error, but it will not be necessary to notice them all.

The first is that the court erred in giving to the defendant the opening and conclusion upon the trial. Ho objection to this ruling having been made below, we need not consider it here.

The second is that the court erred in the charge that, where a contract is made with a minor, either party may disavow the contract when the minor attains his majority. In this we think the court erred. The rule of law is stated in 1 Parsons on Contracts, p. 329, as follows: “ The disability of infancy is the personal privilege of the infant himself; and no one but himself or his legal representatives can take advantage of it. Therefore, other parties who contract with an infant are bound by it, although it be voidable by him. Were it otherwise, this disability might be of no advantage to him, but the reverse.”

The third assignment presents as error, “ If the jury believe, from the evidence, that, after the sale of the stock to the defendant by Walter Harris, he or his father, by using or appropriating the same, exhausted said stock of cattle, you will find for the defendant.”

If the father had appropriated the cattle, this would not have absolved the defendant, unless the appropriation was made by the direction or with the consent of the son. If the son, after he became of full age, had unequivocally asserted and claimed the ownership of the stock, thus preventing the defendant from taking possession, this would have amounted to a disavowal of the contract and would have released the defendant. It is held that when an infant who has- purchased property disposes of it after coming of age, this must be regarded as a confirmation of the contract. Cheshire v. Barnett, 4 McCord, 241; 1 Parsons, 321-2. So, when an infant has sold property and afterwards reclaims it, this would be regarded as a disavowal of the contract and he must restore the purchase money. Parsons, supra. It seems that an infant may disapprove a sale of personal property before he attains his majority, though the rule is otherwise as to real estate. Cummings v. Powell, 8 Tex., 80. But the authorities assert that the acts of ownership, to amount to a d.savowal of the previous sale, must be distinct and unequivocal.

Now the only act of "Walter Harris which has any semblance of such a claim, was his putting into a herd of his father’s, thirteen cattle having the brand which he had sold to the defendant. But the defendant testifies that Walter Harris agreed, at the time when the note was given, to collect out of his (defendant’s) stocks the cattle which were to be given,in payment of this note. And Walter Harris testifies that he did promise so to collect the cattle if he could. This act of his, therefore, standing alone, could hardly be called an unequivocal assertion of title to the whole brand. •

We do not wish to comment on the evidence. It is conflicting, and some portions of it are to us unintelligible. But we may prop- ' erly remark that the defendant appears to have executed the note with his eyes open. He knew that he was dealing with a minor. He appears to have bought the stock as they ran upon the range, trusting to his own knowledge of their value and relying upon his ability to collect them. It is not enough for him to show that he has not collected the cattle, or that he has derived no benefit from them. lie should show either that his vendor had no title to the stock, or that the vendor, or some, other person for whose conduct the vendor is responsible, has done some act since the sale which has put it out of his power, without any fault or neglect on his part, to • get the benefit of his purchase.

The seventh assignment is that the court erred in rendering judgment against L. B. Harris, he being only a formal party. We incline to the opinion that if the defendant was entitled to the judgment at all, it was correctly rendered against L. B. Harris. The latter, although only a formal party, was nevertheless before the court, and the evidence showed that he received the benefit of the credit which was placed upon the note.

Our opinion is that the judgment should be reversed and the cause remanded.

Reversed and remanded.

[Opinion approved May 8, 1883.]  