Blomquist v. Jennings , 119 Or. 691 ( 1926 )

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] There is no merit in the contention that the complaint fails to state a cause of action. Defendants did not see fit to stand on their demurrer and therefore the complaint should be liberally construed. It is entitled to every reasonable intendment: Bottig v. Polsky, 101 Or. 530 (201 P. 188). It is also urged that the complaint is fatally defective in that it does not allege "that the $260 belonged to plaintiffs or that they were purchasers of the automobile," that defendants owned the automobile or that they sold it. This, in our opinion, is a strained and highly technical construction of the pleadings.

It is asserted that the allegations of the reply constitutes a departure. In view of defendants' charge that the automobile had been damaged by plaintiffs while in their possession, it was proper to allege in the reply that the transaction was fraudulent. In this jurisdiction it is settled that where a minor disaffirms a contract which is fair and free of fraud, returns the article purchased, and seeks to recover the amount paid thereon, he may be required to respond in damages for depreciation in value of the article while in his hands: Petit v. Liston, 97 Or. 464 (191 P. 660, 11 A.L.R. 487). Plaintiffs were not seeking to rescind this contract on the ground of fraud, but such allegations were made for the purpose of controverting the claim for damages. The allegations of the reply that the contract was made in the name of V. Blomquist for the purpose of concealing the identity of the real parties in interest is not a departure from the theory of the complaint that plaintiffs purchased the automobile from defendants.

The principal issue in this case is whether the defendants sold the automobile to the plaintiffs or to the adult brother, V. Blomquist. The conditional sales contract introduced in evidence purported to show that it was executed by V. Blomquist and defendants. It was not error for the court to admit testimony to show who were the real parties in interest and that the contract was thus executed for the purpose of concealing the fact that plaintiffs were minors: Wm. Brown Co. v. Duda,91 Or. 402 (179 P. 253); Riddle State Bank v. Link, 78 Or. 498 (153 P. 1192); Smith v. Campbell, 85 Or. 420 (166 P. 546); Barbre v. Goodale, 28 Or. 465 (38 P. 671, 43 P. 378). This question was submitted to the jury under appropriate instructions and its finding thereon, as embodied in its verdict, is conclusive.

It is urged that no recovery can be had by a minor on the rescission of a contract made in the name of one purporting to act as his agent. This theory is inconsistent with the allegations of the further and separate answer to the effect that they refused to deal with plaintiffs but dealt exclusively with V. Blomquist. No question of agency is involved. Assuming, however, that V. Blomquist did act as the agent of the minors, it does not follow that there could be no recovery. While there is authority to the contrary, the modern trend of decisions, which we think announce the better rule, hold that the appointment of an agent by a minor is not void but only voidable. See Casey v. Kastel, 237 N.Y. 305 (142 N.E. 671, 31 A.L.R. 995), and exhaustive note wherein authorities are collated.

Error is predicated on the instruction of the court that the jury was bound to accept as an established fact that Elmer Blomquist and Ralph Buchanan were minors. It is true that defendants in their answer denied the infancy of the plaintiffs but there was no contradiction in the testimony relative to their ages. Indeed, defendants assert that they refused to deal with plaintiffs for the very reason that they were minors. In appellants' brief, we find the statement of counsel, "they refused to deal with plaintiffs because they were minors."

It is not necessary to consider assignments of error relative to instructions concerning the issue of fraud, for the reason that the jury found in favor of defendants upon that phase of the case and awarded them damages as an offset against payments made on the purchase price. No damages could have been allowed if the transaction had been fraudulent. It must be apparent that appellants were not prejudiced.

Defendants complain because the court did not admit evidence for the purpose of showing that the automobile was not owned by defendants, but by one Julius Roesch. A sufficient answer to this contention is that defendants alleged that they "sold said automobile under a written contract of sale for the sum of $695.33 to V. Blomquist." The trial court very properly submitted this cause under the issues as made by the pleadings.

Appellants complain of the following instruction:

"I instruct you that the defendants do not claim damages or offsets against plaintiffs' claim for the use of said automobile in the pleadings of the defendant, and therefore the defendants have no right in this case to offset anything for the use of said automobile."

It is argued that the above instruction is erroneous in that it denies the right of recovery for the use of the automobile by plaintiffs. Again reverting to the pleadings, it is observed that there is no basis for such claim in damages. Under the pleadings, defendants were not entitled to compensation for the reasonable value of the use of the automobile while in possession of the plaintiffs, but they were allowed damages for depreciation in value of the car during such time.

There are 27 assignments of error. We have carefully reviewed all of them, but have selected for consideration in this opinion those upon which we think appellants seriously rely for reversal. If we have acted unwisely in this respect, it will at least point a moral: Avoid making shot-gun appeals in the hope that some of the scattering shot will take effect. The rifle with its single bullet has far greater shocking power. We end the preachment with this admonition: Concentrate.

The judgment of the lower court is affirmed.

AFFIRMED.

RAND, J., absent.