
    John E. Turney, Jr., v. Mobile & Ohio Railroad Company.
    
    
      (Jackson.
    
    April Term, 1913.)
    1. ACCORD AND SATISFACTION. Set aside without infant’s return or tender of consideration received, where same has been expended, wasted, or squandered.
    An infant may disaffirm the settlement of a personal injury claim, and sue for the damages, without returning or tendering the consideration received by him in accord and satisfaction thereof, where the same has passed from his hands, either by expenditure or waste during his minority; for to hold otherwise would be practically to debar him from the protection of his infancy and against the effects of his folly and indiscretion, and to thwart or circumvent the safeguards intended for his protection, and to protect the person so dealing with the infant in disregard of the rules laid down for the protection of infants against the effects of their folly and indiscretion. (Post, pp. 675-677.)
    Cases cited and approved: Nichol v. Steger, 6 Lea, 393; Lane v. Dayton, etc., Co. 101 Tenn., 581; MacGreal v. Taylor, 167 U. S., 688; Craig v. Van Bebber, 100 Mo., 584; Worthy v. Oil Mill, 11 L. R. A. (N. S.), 692, notes; Wuller v. Grocery Co., 241 Ill., 398; Putnal v. Walker, 61 Fla., 720; Englebert v. Prichett, 26 L. R. A., 177, note.
    2. SAME. Same. Infant may avoid settlement of personal injury claim, without returning or tendering consideration received by his mother, as next friend or parent.
    An infant may disaffirm the settlement of a personal injury claim, and sue for the damages, without returning or tendering the consideration paid to his mother, who joined in-the settlement and received a lump sum for her loss of the services of the infant plaintiff during his minority, and of his claim for personal injuries, without defining any particular portion as his; for, whether the mother had authority, as next friend or parent, to enter into the settlement for the minor, the rule is that, where the consideration was: not paid. to the. infant, but to the parent, the infant is under no obligation to return or tender such consideration in. order to disaffirm the settlement. {Post, p. 678.)
    Cases cited .and approved: Green v. Perkins, 3 Lea, 491; Cody .v. Iron Co., 105 Tenn., 516; Railroad v. Lasca, 79 Kan., 311; GrifiBs v. Younger, 41 N. C., 620; Stull v.'Harris, 51 Ark., 294; .Vogelsang v. Null, 67 Tex., 465.
    3. SAME. Same. .Same. Infant sustaining personal injuries lacks capacity to consent to or1 direct payment, or to receipt for same.
    An infant sustaining a personal injury lacks legal capacity to consent to or direct payment in settlement therefor to his mother, or to execute a receipt to the owrongdoer, in settlement thereof. (Post, pp, 678, 679.)
    Case cited and approved: Vogelsang v. Null, 67 Tex., 465.
    FROM MADISON.
    Appeal from the Circuit -Court of Madison County to the Court, of Civil Appeals, and by. writ of certiorari from the Court of Civil Appeals to the Supreme Court, —hi. R. BaRhah, Circuit Judge.
    T.1 W. Pope and W. H. Btgos. for plaintiff.
    Bond & Bond and L. M. MoCoYpfor defendant.
    
      
       On the question of the necessity of returning consideration in order to disaffirm infant’s contract, see note in 26 L. R. A., 177.
    
   Mr. Justice Williams

delivered the opinion of the Court.

The arguments of the attorneys in this case relate to' two phases of the law bearing on an infant’s disaffirmance of his contract of settlement of a personal injury claim, pleaded as an accord and satisfaction.

The first phase involves a point discussed, but that may be said to have been by way of obiter, or to have been reserved from decision, in the case of Lane v. Dayton, etc., Co., 101 Tenn., 581, 48 S. W., 1094, whether an averment that the consideration, received by the infant in satisfaction, had been expended or was not on hand, will excuse tender or return of the amount, so as to enable him to maintain the suit.

Judge Snodgrass there said that:

The “general rule is well stated in the editor’s first note to the case of Englebert v. Pritchett, 26 L. R. A., 177, as follows: ‘The rule which comes the nearest to being general is that all consideration which remains in the infant’s possession upon his reaching majority, or at the time of an attempted disaffirmance in case he is still under age, must be returned, but that disaffirmance will not be defeated by inability to return what he has parted with prior to such time. He will.not be permitted to regain what he parted with, or refuse payment while still possessed of what he received. There hare been many distinctions attempted between executory and executed contracts, and between seeking relief at law andun equity; but, with only a few exceptions, ihe rule .as stated aboye has governed the decision, regardless of the facts relied on as distinguishing facts. There is no substantial ground for a distinction as to the rule tó be applied, although there may be as to the manner of its application.’

“On the merits, as to refunding or tendering, with some distinctions as to time and special facts, the Tennessee cases, so far as they go, rightly understood, are in accord.”

The learned judge having thus just pointed out that the rule was applicable alike at law and in equity, then cites an equity case, Nichol v. Steger, 6 Lea, 393, where it was said:

“It is- earnestly urged, however., that the infant, in n court of equity, must return the property before he -can disaffirm the contract. We need but say that where the property is in his possession, or he still has it, so that, the court-can compel him so to do, he'will he re-VIred to return it, as one of the terms on which the court gives relief from an improvident contract, or one made by a party under the disability of infancy.
“But where he has parted with the property, or it is destroyed, then it is impossible to administer this equity, tte hold that in such a case, when the infant is sued for We price, he might defend against his liability on the contract, but is to be held responsible as for a tort 'In converting the property, would be practically to debar him from the plea of infancy as to Ms unauthorized' . contracts, unless he was prepared to place the vendor in status quo by a return of the property.’» .;

That what was said in Lane v. Dayton, etc., Co. was sound, and supported by a decided weight of authority, is shown, not only by the case and annotations therein more immediately referred to, but also by Craig v. Van Bebber, 100 Mo., 584, 13 S. W., 906, 18 Am. St. Rep., 569, and notes 618, 659; Worthy v. Jonesville Oil Mill, 11 L. R. A. (N. S.), 692, notes; Wuller v. Chuse Grocery Co., 241 Ill., 398, 89 N. E., 796, 28 L. R. A. (N. S.), 128, 132 Am. St. Rep., 216, 16 Ann. Cas., 522; Putnal v. Walker, 61 Fla., 720, 55 South., 844, 36 L. R. A. (N. S.), 33; 18 Am. & Eng. Ency. L. (2d Ed.), 293; 22 Cyc. 614-616.

The supreme court of the United States, after a review of the authorities, said: “If the consideration has passed from his [the infant’s] hands, either wasted or expended during his minority, he is not thereby to be deprived of his right or capacity to avoid his deed, any more than he is to avoid his executory contracts.” MacGreal v. Taylor, 167 U. S., 688, 17 Sup. Ct., 961, 42 L. Ed., 326.

It is true, as argued by counsel for defendant company, that the rule here announced puts it in the power of a minor to perpetrate a fraud; but this can only occur in instances where the person liable or sued has prece'dently proceeded in disregard of other rules laid down for the protection of infants against the effect of their folly and indiscretion, which safeguards would be subject to be thwarted in effect, or circumvented, were the contention of defendant company adopted.

Looking to tlie case on its other phase, and to the facts-as they appear, even on the construction placed thereon by the defendant company, the same result would be reached. The settlement sum of $1,500 was turned over to the plaintiff’s mother, under a receipt to defendant company, signed by herself and the plaintiff, in satisfaction of her claim for loss of the services of plaintiff during minority, and of his claim for personal injuries, but without any attempt to define any particular portion as his. No part of it passed into the hands of plaintiff, or became subject to his disposal, though the delivery of a check therefor to his mother, as payee, was by his direction. The proceeds -were used by the mother.

Passing the question of lack of authority of a mother, as next friend or parent, to enter into a settlement for the minor (Green v. Perkins, 3 Lea, 491; Cody v. Iron Co., 105 Tenn., 516, 58 S. W., 850; Mo. Pac. R. Co. v. Lasca, 79 Kan., 311, 99 Pac., 616, 21 L. R. A. [N. S.], 338, 17 Ann. Cas., 605), the rule seems to be well established, on authority as well as on reason, that where the consideration is not paid to the infant, but to the parent, the infant is under no obligation to make a tender in return in order to disaffirm. Griffis v. Younger, 41 N. C., 520, 51 Am. Dec., 438; Stull v. Harris, 51 Ark., 294, 11 S. W., 104, 2 L. R. A., 741; Vogelsang v. Null, 67 Tex., 465, 3 S. W., 451, and cases cited in notes, 18 Am. St. Rep., 689, 26 L. R. A., 183.

The infant lacked legal capacity to consent to or direct payment to the mother, as well as capacity to execute the receipt to defendant company. Vogelsang v. Null, supra.

Writ of certiorari to review the judgment of the court of civil appeals denied.

Mr. Justice Buchanan dissents.  