Wickham v. Torley , 136 Ga. 594 ( 1911 )

Fish, C. J.

(After stating the facts.)

1. “The contracts of a minor under twenty-one years of age are void, except for necessaries. . . If, however, the minor receives property, or other valuable consideration, and, after arrival at age, retains possession of such property, or enjoys the proceeds of such valuable consideration,. such a ratification of the contract shall bind him.” Civil Code (1910),, § 4233. “If a minor, by permission of his parent or guardian, or by permission of law, practices any profession or trade, or engages in any business as an adult, he shall be bound by all contracts connected with such trade, profession, or business.” Ib. § 4235. | One of the contentions of counsel for the plaintiff is that as the defendant, at the time he made the contract sued on, had neither parent nor guardian, he was free to make the contract, and that it was therefore binding upon him, notwithstanding his infancy. This contention, however* will not hold. Until majority the child remains under the control of the father, who is entitled to his services and the proceeds of his labor. This parental power may be lost in several ways, as'is prescribed in Civil Code (1910), § 3021. But even emancipation of the minor from parental control only gives him a right to his own earnings and releases him from his parent’s control from that time, but it does not remove his disability and clothe him with the power tp contract. 2 Page on Contracts, § 852; Clarke on Contracts, 150. It must follow that if an infant after the loss of parental control has no capacity to make a binding contract, the mere fact that he had neither parent nor guardian would not operate to confer upon him the power to contract. Nor would the mere fact that the defendant, having neither parent nor guardian, was working for himself and receiving his own wages, prior to the time the contract sued on was entered into, render him capable of making such contract, which was entirely disconnected with the work for which he was receiving his earnings. * Another contention of counsel for the plaintiff is that the evidence submitted in behalf of the plaintiff authorized a finding that the defendant, at the time he borrowed the money, was engaged as an adult in the business of raising pigeons for sale and that the contract sued on was connected with such business. We can not agree to this. According to the testimony of the plaintiff herself, the defendant was not engage' in such business at the time she loaned him the money, but he borrowed it for the purpose of embarking in such a business, and there w;as no sufficient evidence to show that any of the money he borrowed was ever invested in 'such business. Our conclusion is that the plaintiff failed to make out a prima facie case.

2. Did the court err in refusing to permit the plaintiff, in order to save a nonsuit, to introduce the defendant and prove by him that he was then in the possession of and owned the property in which a large portion of the money he had borrowed from the plaintiff had been invested, and that he was also then in possession of a large portion of the borrowed money? The rulings of this court relating to this question have been collated by Justice Lumpkin in Penn v. Georgia Southern & Florida Railway Co., 129 Ga. 856 (60 S. E. 172), and, as was there said, “among these decisions there is no conflict, but, construed together, they are in harmony and make up a complete rule. It is common practice for the presiding judge, where counsel for the plaintiff in error has omitted evidence by accident, inadvertence, or even because of a mistake as to the necessity for offering a particular witness or particular evidence, to allow the ease to be reopened and additional evidence introduced in order to prevent a nonsuit. But this is not a matter of arbitrary right on the part of the plaintiff or his counsel. The judge has a considerable discretion in the matter. It may.be that counsel for a defendant has dismissed witnesses or changed his position, relying on a judge’s announcement, so that it would be unjust to allow a reopening of the case. Or the judge may be of the opinion that counsel are needlessly consuming time and experimenting in the case rather than developing it; or other reasons may influence him, in the exercise of a sound discretion, in refusing a motion to reopen the case and allow additional testimony.” In the present case it appears that counsel for the plaintiff might have well contended in good faith that the evidence for the plaintiff made out a prima facie case. In the present case there appears no reason why it would have been unjust to the defendant to have allowed the plaintiff to reopen the case. The plaintiff offered the defendant himself to prove additional facts to make out a case. Nothing appears to authorize the conclusion that counsel was heedlessly consuming time and experimenting in the case rather than developing it. Certainly the plaintiff could not be expected to introduce the defendant as a witness in order to make out a case except in dire necessity. In the present case we think the plaintiff might well have rested the casé on the evidence submitted on behalf of the plaintiff until the judge had intimated his intention to grant .a nonsuit. On such intimation, then the necessity arose for the ■ plaintiff to introduce her adversary as a witness. We are of opinion that the -court erred in not allowing her to do so. This rule is not in conflict with the decisions in Cushman v. Coleman, 92 Ga. 772 (19 S. E. 46), Freyermuth v. South Bound R. Co., 107 Ga. 31 (32 S. E. 668), Davis v. Chaplin, 110 Ga. 322 (35 S. E. 312), and Brooke v. Lowe, 122 Ga. 358 (50 S. E. 146), when the facts of those eases are construed in connection with the rulings made. The plaintiff offered to show by the defendant that he was,- even ^ at the time of the trial, in possession of and the owner of the prop- | erty in which a large portion of the borrowed money had been in- ¡ vested, and that he was then in possession of a large part of the borrowed money. If this had been shown, then without more it j would have authorized a recovery^under the Civil Code (1910)^J *,§. 4233,^whieh provides, “if . . the minor receives property, or other valuable consideration, and after arriving at age retains possession of such property or enjoys the proceeds of such valuable consideration, such a ratification of the contract shall bind him.” White v. Sikes, 129 Ga. 508 (59 S. E. 228, 121 Am. St. R. 228). The court erred in refusing to allow the plaintiff to introduce additional evidence offered in order to avert a nonsuit.

Judgment reversed.

All the Justices concur.