Commander v. Brazil , 88 Miss. 668 ( 1906 )

Mayes, J.,

delivered the opinion of the court.

We think this case was correctly decided on the facts, and would affirm it without any opinion were it not that there is involved the question as to whether or not a minor may make false representations as to his age, thereby inducing a contract with another person and accepting the benefits to be obtained under the contract, and afterwards escape liability by proving that he was not of age at the time of making the contract. The case of Ostrander v. Quin, 84 Miss., 230 (36 South. Rep., 257), comes very near deciding this question; but, inasmuch as there is some question as to -whether the decision was based on the ground that the minor in that case used the money for necessaries, and because it was so used the court held him liable, we deem it necessary to remove all doubt on this subject. The record in this case shows that W. H. Commander was nineteen years and nine months old at the time he bought out the livery stable and executed the deed of trust in question; that he was asked the direct question, two or three times, while negotiations were being held, as to his age, and he stated he was of age; that appellee made the trade with him in good faith believing him to be twenty-one years of age, and on faith of the contract turned over to him the entire livery business — the appellant executing at the same time a deed in trust on the live stock, buggies, etc., so sold by appellee to him, and giving as additional security a deed of trust on fifty acres of land. The appellant having failed to pay according to his contract, and the personal property sold him by appellee having been sold under the deed in trust and not bringing enough to satisfy the debt, the land is now resorted to. It may be stated in this connection that the proof shows that the personal property sold had been much abused by misuse and neglect. Under these circumstances, can appellant successfully set up his minority as a defense to foreclosure proceedings ?

Perhaps there is no subject in the law that has received more elaborate discussion, or wherein there is more hopeless conflict of authority, than the subject now presented for decision by this court. It may be stated that the great weight of earlier authorities on this subject hold that a minor cannot be held liable on his contract, but the tendency of all modern text-books and decisions is in favor of holding a minor responsible under his contract, where he deliberately makes a false representation as to his age, and in this way induces another to contract with him and accepts the benefits of the contract. 'Whatever may be the weight of earlier authorities on this subject, common justice outweighs the unsatisfactory distinctions attempted to be set us as reason why a minor should not be held liable under these circumstances.^ It may be said that all authorities, with hardly an exception, and regardless of the way that the different courts have held upon the subject, recognize the right of the proposition ; for while they hold a minor cannot be sued on his contract, yet they hold that he is liable for his tort and make him responsible in damages for his false representations. Other authorities lay down the rule that he may not be sued at law, but he may be sued in equity. ‘But it matters not in what court the suit may be brought or what the forra of the action, the thing done is the subjecting of the minor’s property to the payment of an obligation that his fraudulent conduct has created. If the property of a minor is to be subjected to the payment of debt or damages thus created by him by his fraudulent misrepresentation, we fail to see what protection is given the minor by adhering to the distinction of form attempted to be drawn by many of the earlier authorities.^ As it is aptly expressed in the case of Rice v. Boyer, 108 Ind., 472 (9 N. E. Rep., 420; 58 Am. Rep., 53) : “There is a connection between contract and tort in every case of bailment — in the bargain and sale of personal property and of the purchase and sale of real estate; and if an infant is not responsible for his fraudulent misrepresentation of his age in connection with these transactions, there is not within the whole range of business transactions any case in which he could be made liable for his fraud.” The tendency of courts at this present time, and of legislation, is to break away from mere forms and to go to the real substance of a controversy, irrespective of forms, and administer the law according to substantial right, unhampered by the technicalities of the older authorities.

If a minor is to be held liable for his fraud, and. his property 'is to be taken to compensate in damages a person who has suffered damage by the minor’s deceit, we fail to understand how it could be made any easier on the minor for this to be done through an action in tort, instead of on his contract, if the same results follow. Minority is given for the protection of a person under age, but it cannot be used as a weapon with which to commit fraud. "When a minor has reached the stage of maturity in years and physical appearance calculated to deceive a person of ordinary prudence, and the minor does deceive such person as to his age, and asserts that he is of full age, and induces a contract to be made with him, and accepts the benefits of his contract, he will not be heard at any future time to deny that he was of full age at the time the contract was executed, and thereby escape the obligation of his contract, where the party dealing with him has dealt with him believing him of full age. We do not hold that an executory contract may be enforced against an infant who falsely represents himself to be of age, unless some damage has been done to the party with whom he contracts. We do not hold that an infant is estopped by his deed merely. We do not hold that any sort of a contract may be enforced against an infant at any time on account of his false assertion that he is of age, unless the age and appearance indicate such years of maturity as may well deceive the person with whom he deals.^ We do hold, however, that when a minor has reached that stage of maturity which indicates that he is of full age, and enters into a contract falsely representing himself to be of age, accepting the benefits of the contract, he will be estopped to deny that he is not of age when the obligation of the contract is sought to be enforced against him. Ostrander v. Quin, 84 Miss., 230 (36 South. Rep., 257) ; Ferguson v. Bobo, 54 Miss., 121; Levy v. Gray, 56 Miss., 318; Brantley v. Wolf, 60 Miss., 420; Rice v. Boyer, 58 Am. Rep., 53 ; Pomeroy’s Equity (3d ed.), 945; 2 Paige on Contracts, § 880; 16 Am. & Eng. Ency. Law (2d ed.), 292.

The chancellor in this case decreed a foreclosure of the deed in trust, with a decree over against the minor for any balance that remained due after the sale of the property if the property did not bring a sufficient price to pay tbe debt. We approve the chancellor’s decree in toto.

Affirmed.