
    Hewitt v. Klein et al., Minors.
    (Decided November 20, 1933.)
    
      
      Messrs. Gatch, McLaughlin & Gatch, for plaintiff in error.
    
      Mr. Samuel A. Rubenstein, for defendants in error.
   Hamilton, P. J.

This action originated in the Municipal Court of Cincinnati. The suit was brought by Benjamin Klein and Peter Kappas, minors, through their next friend, Benjamin P. Klein, against Mabel Gr. Hewitt, plaintiff in error here. The suit was to recover the sum of $45, paid by the minors on a ten months ’ lease for a summer cottage on the Miami river.

The lease was executed in April, 1932, for the total sum of $135 for a ten months’ period, all payable on May 1, 1932. The minors paid Mrs. Hewitt $45 on the contract of lease. About the middle of May, the minors notified the agent of Mrs. Hewitt, who acted for her in the matter, that they would not be able to raise the balance due, but would try to have it in a few days. The agent gave them until May 21st to complete the payment. On May 21st they had failed to pay, and they were given notice to leave. On that day, for the first time, they told the agent of Mrs. Hewitt that they were not of age, and they asked for the return of the $45, but this Mrs. Hewitt refused to do. The minors thereupon brought suit to recover the $45.

At the trial of the case, the defendant, Mrs. Hewitt, was permitted to introduce evidence tending to show that the lease to the minors interfered with her renting the property to advantage, and that she was thereby damaged, and the court permitted her, because of such damage, to offset the amount of rental paid, and rendered judgment for the defendant.

The minors thereupon prosecuted error to the Court of Common Pleas, which court reversed the Municipal Court and entered judgment for the plaintiffs. From, that judgment of reversal, error is prosecuted to this court.

The question is: May the defendant, Mrs. Hewitt, counterclaim on the basis of damage suffered by reason of her inability to rent the property for the season of 1932?

The right of the minors to rescind the contract is not denied, and that right is well established by law. The case of Mestetzko v. Elf Motor Co., 119 Ohio St., 575, 165 N. E., 93, is authority for the right to counterclaim for damages under certain circumstances. In the Mestetslco case, the Supreme Court of Ohio, in the opinion by Chief Justice Marshall, cites the rule pronounced in the case of Myers v. Hurley Motor Co., 273 U. S., 18, 47 S. Ct., 277, 71 L. Ed., 515, 50 A. L. R., 1181, as authority for the right to counterclaim. The decision in that case, however, only goes to the extent of holding that a vendor, in a proceeding by an infant after attaining his majority to disaffirm his contract for the purchase of an automobile made under a fraudulent misrepresentation as to his age, may, to the extent of the infant’s claim, be allowed to.set off a claim for injury done to the car by the infant’s tortious acts. The element of misrepresentation also enters into the Mestetsho case, but we have no question of that kind in this case. There was no evidence of any misrepresentation as to age disclosed by the bill of particulars.

There are cases holding that, during occupancy of the premises, the seller may counterclaim for wear and tear in excess of ordinary wear and tear.

There are cases holding that the reasonable rental value of the premises may be counterclaimed, where the occupancy of the property is a necessity. None of these elements is present in the case before us. There is no showing and no defense made that the occupancy was a matter of necessity to the minors. The evidence, as disclosed by the testimony of the defendant, was that when the minors surrendered the property they left it in better condition than it was when they entered upon possession.

As heretofore stated, there was no evidence of misrepresentation as to age, and, therefore, no fraud intervened. '

We gather from the authorities that in such cases as the one under consideration the law of Ohio is to the effect that the money paid upon a contract by a minor may, upon its disaffirmance by him, be recovered in an action therefor — subject, however, to a counterclaim by the seller for rent — if the occupancy of the property was a necessity, for wear and tear in excess of ordinary wear and tear, and, if misrepresentation by the minor of his age results in damage, the minor would be required to do equity for the damages suffered to the extent of the amount of his claim.

It is clear from the record that none of these conditions are present in the case under consideration, and, there being no valid, counterclaim, the Court of Common Pleas was correct in reversing the judgment of the municipal court and entering judgment for the plaintiff minors for the amount of the money paid by them for rent under the contract.

The judgment of the Court of Common Pleas is affirmed.

Judgment affirmed.

Cushing and Ross, JJ., concur.  