Stack v. Cavanaugh , 67 N.H. 149 ( 1891 )

It is the settled law of this state that an infant may avoid his contract of sale by rescinding the contract and restoring the property to the vendor. If he does so, he may recover the price paid by him for the property. Heath v. Stevens, 48 N.H. 251. If he does not restore the goods and has not paid for them, he is liable in a suit by the vendor for so much of the price as is equal to the benefit derived from the purchase. Hall v. Butterfield, 59 N.H. 354; Bartlett v. Bailey, 59 N.H. 408.

In this case the plaintiff returned the horse to the defendants reduced in value by the plaintiff's inexperience and want of skill in driving. Though returned on the same day and within a few hours of the purchase, it was not the same horse in character and value. But the acts of the plaintiff in dealing with the horse were the result of ignorance and want of skill in the management of horses, rather than of wilful abuse. Being an infant under full age, the same conduct towards a horse bailed to him for hire would have given the owner no ground for recovery. Eaton v. Hill,50 N.H. 235. It is only for positively tortious acts wilfully committed that an infant is liable in an action of trespass or case. If the management and driving of the horse by the plaintiff in this case were not of such a character as to give the defendants a right of action had the plaintiff hired the horse, they cannot make the fact of injury from the same treatment by him as owner of the horse a ground for recoupment of damages. To give them this right the claim must rest upon a basis which would enable them to recover for an injury to their own property, and this they cannot do in a case of this kind against an infant.

The plaintiff's incapacity of infancy was known to the defendants before the suit was brought, and his treatment of the horse was not malicious nor wilful abuse. Upon the facts stated the defendants have no defence.

Judgment for the plaintiff.

CLARK, J., did not sit: the others concurred.

The foregoing opinion was delivered at the June term, 1891. The defendants moved for a rehearing for the following reasons:

1. Because the opinion goes upon the ground that the plaintiff rescinded the contract of purchase, when, in fact, after proposing to rescind, he left the horse to be sold upon his account.

2. Because, when repayment of the sum of $25 was demanded, the horse had been sold on the plaintiff's account, and he thereby made it impossible to rescind.