Turner v. Smithers , 8 Del. 430 ( 1867 )

The Court, Gilpin C. J., charged the jury.

That under the facts and circumstances proved in the case, for there was no dispute as to the truth of them, the agreement in question and relied upon by the defendant, as his only defense in the action, was not legally binding or obligatory upon the plaintiff because of his infancy and consequent inability in contemplation of law, to make such a contract in such a case and in regard to such a matter, at the time when it was • entered into by him; and being still under the age of twenty-one years, he was not only unable as yet to confirm or ratify it, but had here made his election before attaining his majority, to repudiate and avoid it by instituting the present suit through the intervention of a next friend, against the defendant, which he had a perfect legal right to do. The Court was also of the opinion that the arrangement and agreement between the defendant and his father-in-law, that the latter should receive the $500, to be paid by the State to aid the defendant in procuring the plaintiff as his substitute under the draft spoken of, and that the plaintiff should be paid but twenty dollars by him for becoming his substitute under such draft, was in contravention of the meaning, object .and policy of the statute of the State in such case made and provided, and was in both of those respects, a false and fraudulent transaction. The verdict, should, therefore be for the plaintiff, and the true measure of the damages would be the actual value of his services to the defendant, at the time, and for the time, he entered as his substitute under the draft into the military service of the United States. But as the plaintiff had sued only for the sum of $500, and had laid his damages in his declaration at that amount, the jury could not exceed that sum in their estimate of them.

The plaintiff had a verdict for $500.