
    George Stumpf, Respondent, v. The Halstead Land and Development Company, Appellant.
    (Supreme Court, Appellate Term,
    June, 1908.)
    Contracts: Parties and persons by whom or against whom enforcible — In general — Contract with “A,” guardian of “ G Validity of contracts— Effect of invalidity or illegality — Recovery back of value parted with on illegal contract — Right of infant on attaining majority to rescind contract made with another for his benefit. Rescission of contracts — Return of consideration or benefits — When necessary.
    Where A. S., a mother, permitted her infant son G. S. to enter into a contract for the purchase of real property in her name, describing her as “ Guardian of G. S.,” though never having been appointed such guardian by any competent authority, the contract is the contract of the mother; and the son may not, upon attaining his majority, rescind such contract and recover back the money paid thereon, though the vendor knew the contract was made in the behalf and interest of the son.
    Nor will such rescission be effected without restoring what had been received thereunder; and a mere assertion by the plaintiff, in an action to recover the money so paid, of his willingness to deliver up the benefits and rights he has under the contract is not enough.
    Appeal by the defendant from a judgment in favor of the plaintiff, rendered in the Municipal Court of the city of New York, second district, borough of the Bronx.
    Lindsay, Kalish, & Palmer (William R. Bayes, of counsel), for appellant.
    Gustave Frey, for respondent.
   Greenbaum, J.

In his complaint the plaintiff alleges that, while he was a minor, and on the 31st day of October, 1906, his mother, Annie Stumpf, “ entered into a contract in writing for and in behalf of the plaintiff herein and as his agent, with the defendant, whereby the said Annie Stumpf, representing herself as the guardian of the plaintiff herein,” agreed to purchase of the defendant two certain lots of land for an expressed consideration, and to build thereon a certain dwelling-house at an agreed price.

He further alleges the payment to his mother, Annie Stumpf, as his agent, of various sums of money, aggregating $535, “ which the said Annie Stumpf paid over ” to the defendant “ in pursuance of the aforesaid contract and on account of the purchase price as therein stated.

Then follow allegations that plaintiff attained his majority on or about September 12, 1901; that he rescinded his said contract; made -a demand upon the defendant for the return to him of said sum of $535, and that he stood ready to tender back to the defendant and hereby does offer to said defendant, The Halstead Land and Development Company, all the benefits, rights and privileges as represented by any contract or contracts, in his (the plaintiff’s) possession by reason of the contract as hereinbefore stated.” Judgment was recovered by plaintiff.

The contract mentioned in the complaint, as matter of fact, was signed by the plaintiff himself, as follows: Annie Stumpf, Guardian of George Stumpfbut there can be no question but that his mother permitted him to sign her name to the contract, for the reason that it appeal’s that, at the time fixed for closing title under the contract, the plaintiff and his mother were present and represented by counsel and, on that occasion, a deed of the premises was duly executed to Annie Stumpf, guardian of George Stumpf, and a bond and mortgage and building contract by her duly signed as guardian, to a loaning company called the Halley Land and Improvement Company.

Annie Stumpf had never been appointed guardian of her son.

The legal effect of the transaction was that the written contract was made, not by the plaintiff, but by his mother, described as his guardian; and pursuant thereto defendant vested in her the title to the land which was the subject of the agreement.

The words “ Guardian of George Stumpf ” were merely descriptive, although between himself and his mother plaintiff was in a position to show that the contract was made for his benefit.

The contract with defendant being with the mother of plaintiff, and not directly with himself, it is difficult to understand how plaintiff can maintain an action against the defendant upon the theory of his repudiation of the contract. Plaintiff was not the party named in the contract, and there is nothing for him to repudiate. The defendant doubtless knew that the contract was made in behalf and in the interest of the plaintiff, and that his money was applied in performance thereof; but, nevertheless, the contract was not made with him but with his mother, and whatever claims and rights she may have thereunder, either for herself or her son, must be enforced through her.

The defendant deliberately contracted with one who was capable of making a contract.

He who seeks to rescind a contract must restore what he has received thereunder. It is true plaintiff asserts his willingness to deliver up the “ benefits and rights ” that he has under the contract, but does not tender back the title conveyed to his mother, nor a release of the lands from the mortgage lien to which it meanwhile has been subjected, for the obvious reason that the contract was not made with him and his inability to restore to the defendant that with which it parted.

The effect of a judgment against the defendant would be to compel it to repay the money received under the contract and lose the property which it conveyed thereunder, a manifestly inequitable and unjust result and contrary to the well recognized principles applicable in such cases. Eice v. Butler, 160 N. Y. 578.

The judgment of the lower court cannot be upheld.

Giegerich, J., concurs in the result.

Gildersleeve, J. (concurring).

I concur with Mr. Justice Greenhaum in a reversal of this judgment. If we assume that the transactions, which are the basis of this action, were between the plaintiff and the defendant, and that Anna Stumpf is in no way liable upon any of the instruments signed by her, then and in that event the action brought by the plaintiff is in its nature an equitable one of which the Municipal Court has no jurisdiction. The defendant conveyed the property, purchased under the contract of October 31, 1906, in May, 1907; and purchase-money mortgages were executed covering the premises so purchased. Constructively, then, the plaintiff, if by such deed he became the owner, was in possession of the premises, and was actually so in possession, so far as by any evidence appears in the record. Before an infant can rescind a contract, if he has received any benefit thereunder, he must account for the benefit or return its equivalent. Hice v. Butler, 160 1ST. T. 578. And to determine what benefit, if any, the plaintiff has received by reason of such possession, would necessitate an accounting by him for the use, rents or profits of the property between the time of the conveyance to him and the time of his arriving at age and repudiation by him of the contract. Although the action is one for money had and received, such an action is in its nature equitable; and the Municipal Court,- under the circumstances disclosed by the evidence in this case, would, in my opinion, have no jurisdiction. Adequate relief requires a cancellation of the instruments given to the Halley Land and Improvement Company — the loaning company -that advanced the money for improvements on the property.

Judgment reversed and new trial ordered, with costs to appellant to abide event.  