
    Smith, a Minor, v. The Newark Shoe Co.
    (Decided May 9, 1932.)
    
      Mr. Ralph A. Stevens, for plaintiff in error.
    
      Mr. James B. Miller, for defendant in error.
   Mauck, P. J.

Elmer Smith, a minor, by his next friend, by an amended petition in the municipal court of the city of Portsmouth, sought to recover from the Newark Shoe Company $228.67, the $28.67 being a claim for wages and the $200 being a deposit made by him to secure his fidelity as an employee of the defendant and to indemnify the defendant against any loss of stock in the retail store in which the plaintiff was being employed. The defendant denied the minority of the plaintiff, but admitted his employment by the defendant and his deposit of $200. By a cross-petition the defendant claimed that, when the plaintiff was dismissed from the defendant’s employment, there was a shortage in merchandise and cash amounting to more than $300, and the defendant prayed judgment for the amount claimed to be due it after the application of the $200 was made to this claimed shortage. Trial was had without a jury in the municipal court, and judgment entered for the plaintiff as prayed for. Thereafter error proceedings were prosecuted in the court of common pleas, and the judgment of the municipal court was reversed, and final judgment was entered in favor of the plaintiff in error in that court, the defendant in error here. From this judgment of reversal, error has been prosecuted to this court.

In the common pleas and here the case has been heard upon an agreed statement of facts in lieu of a bill of exceptions, and from that it appears that on March 12, 1930, when the plaintiff was eighteen years of age, he entered into a contract in writing for employment by the defendant and represented himself to be twenty-two years of age, and at that time made the $200 deposit heretofore referred to. The contract of employment is not in evidence. Plaintiff’s employment was terminated August 30, 1930. An inventory of the stock revealed a shortage of some $250.. It is not shown that the plaintiff personally took any goods or money, and it is shown that there was opportunity for others to have done so. While the record is wholly unsatisfactory in that the contract itself is not before us, we take it from the undenied cross-petition of the defendant, which we treat as an answer, and from the narrations of the brief of the plaintiff in error, that this written contract provided that the plaintiff should make good all shortages in the stock, and that the $200 deposit was to guarantee the performance of the plaintiff’s contract. This is the question argued.

The plaintiff in error claims that, notwithstanding he misrepresented his age in seeking employment, he may recover his deposit because it was part of his contract and because of his infancy he has a right to rescind his contract.

Whether the disaffirmance of an infant’s contract is sought in a proceeding in equity or in a case at law, it is to be determined by equitable principles. Mestetzko v. Elf Motor Co., 119 Ohio St., 575, 165 N. E., 93. The early English authorities applying this principle held that, where relief against a contract on the ground of infancy was sought, the one so seeking it would be required to do equity by restoring the consideration to the other contracting party. Two notable cases of this character were Hillyer v. Bennett, 3 Edw. Ch., (N. Y.), 222, and Gray v. Lessington, 15 N. Y. Super. Ct., 257, infra. In a masterly review of all of the authorities on contracts of infants, Mr. Freeman in a note to Craig v. Van Bebber, 100 Mo., 584, 13 S. W., 906, 18 Am. St. Rep., 573, rejects the doctrine of the Hilly er and the Gray cases and the principle upon which they rest, and he shows that those cases have not been .followed by most of the authorities in this country. It was not followed in its fullness in this state in Lemmon v. Beeman, 45 Ohio St., 505, 15 N. E., 476. Lately, however, the Supreme Court of the United States in Myers v. Hurley Motor Co., 273 U. S., 18, 47 S. Ct., 277, 71 L. Ed., 515, 50 A. L. R., 1181, reiterates the doctrine of Gray v. Lessington, 15 N. Y. Super. Ct., 257, and Hillyer v. Bennett, 3 Edw. Ch., (N. Y.), 222, and quotes with approval from those authorities the very principle which Mr. Freeman rejected. The Supreme Court of Ohio has expressly followed the Myers case in Mestetzko v. Elf Motor Co., supra. In that case there was no express reference made to the opinion in Lemmon v. Beeman, supra, and we take it there was no purpose in the Mestetzko case to depart from the doctrine of the Lemmon case. In the Lemmon case there was no claim that the infant had deceived the other contracting party as to his infancy, and it was determined that under those circumstances the infant was not bound to return a stock of goods purchased by him over which he had lost control.

Of course, the facts in the Mestetzko case can be distinguished from the case at bar. The underlying principle, however, is the same. That principle is that an infant who deceives the party with whom he is contracting as to his minority is subject in rescinding the contract to the equitable maxim that he who seeks equity must do equity; that he cannot enjoy the benefits of a contract induced by his fraud and then recover the consideration paid by him on the strength of which he obtained those benefits. In such case, says Judge Marshall interpreting the Myers opinion, the court should deal with him as an adult party. Certainly an adult bailee who has deposited a sum with his employer to cover losses of a stock of goods intrusted to such bailee could not recover the deposit without having offset against his recovery the value of such part of the stock as he failed to account for. That, as we conceive it, is this case.

The judgment of the court of common pleas is affirmed.

Judgment affirmed.

Middleton and Blossee, JJ., concur.  