Nielson v. International Textbook Co. , 106 Me. 104 ( 1909 )

Bird, J.

Ordinarily the question whether articles sued for are necessaries or not is a question of fact to be submitted to the jury under proper instructions, unless in a very clear case where the court would be warranted in directing a jury authoritatively that some articles cannot be necessaries for any minor: Davis v. Caldwell, (Shaw, C. J.) 12 Cush. 512, 514; see Raynes v. Bennett, 114 Mass. 424, 429. In the present case it was undoubtedly proper to submit the question to the jury but the defendant claims error in the charge of the court and in its refusal of requested instructions.

The second requested instruction, "If you find that this course was suitable and would have been beneficial to the plaintiff, he cannot recover,” was properly refused. It does not correctly state the law, containing as it does terms applicable to the class of necessaries and terms applicable alike to necessaries and voidable contracts. Nor is it sufficiently comprehensive: Grand Trunk Ry. Co. v. Latham, 63 Maine, 177.

The defendant urges that the portion of the charge to which exceptions are taken indicated that the court intended the jury to understand that the course of study sold to plaintiff came within the category of professional education. Where, however, the part of the charge excepted to'is but an extract detached from its context it is ordinarily necessary to a determination of the exceptions .to examine the whole charge : Donnelly v. Granite Co., 90 Maine, 110, 117. In the case at bar the infirmity excepted to, if existent, is cured by the closing paragraph of the charge; "It [the course of instruction] seems to stand on intermediate ground, being between that of a trade and a learned profession. But it is for you to determine whether this particular course of instruction was suitable and requisite for this particular young man, as you have seen him here, and as the other facts in the case have given you information in regard to him :” See State v. Watson, 63 Maine, 128; and also Bangs v. Railroad Co., 89 Maine, 194, 198.

It.is not necessary that an infant, in order that he may recover back money paid by him in execution of a voidable contract, should place the other party in statu quo. "If he had received property during infancy and had spent, consumed or destroyed it, to require him to restore it, or the Value of ’it, upon avoiding the contract, would be to deprive him of the very protection which it is the policy of the law to afford him;” Boody v. McKenney, (Shepley, C. J.) 23 Maine, 517, 525, 526; see also MacGreal v. Taylor, 167 U. S. 688, 699-700; Vent v. Osgood, 19 Pick. 572, 577. That plaintiff had derived some intellectual benefit from the use of the books returned by him, should not place him in a worse condition than that of one who has actually consumed or destroyed tangible property. The refusal of the first requested instruction was not error.

The defendant presents a general motion for new trial. It cannot be sustained. The issues submitted to the jury were simple and the instructions given sufficiently favorable to defendant. The material facts were not in controversy.. What were the logical and correct inferences from the facts? In the conclusions of the jury we find.no manifest error.

Exceptions and motion ovemded.