Fisher Ex Rel. Fisher v. Taylor Motor Co.

107 S.E.2d 94 (1959) 249 N.C. 617

Alfred Jefferson FISHER, by Israel Fisher, his father and Next Friend,
v.
TAYLOR MOTOR COMPANY, Inc.

No. 90.

Supreme Court of North Carolina.

February 25, 1959.

Robert G. Bowers, Bayboro, Norris C. Reed, Jr., New Bern, for plaintiff-appellant.

R. E. Whitehurst, New Bern, for defendant-appellant.

WINBORNE, Chief Justice.

The relative rights of plaintiff and of defendant, in such cases, are well defined in principles of law announced by and prevailing in this Court. See Collins v. Norfleet-Baggs, 197 N.C. 659, 150 S.E. 177; Greensboro Morris Plan Co. v. Palmer, 185 N.C. 109, 116 S.E. 261; McCormick v. Crotts, 198 N.C. 664, 153 S.E. 152; Coker v. Virginia-Carolina Joint-Stock Land Bank, 208 N.C. 41, 178 S.E. 863; Barger v. M. & J. Finance Corp., 221 N.C. 64, 18 S.E.2d 826, and cases therein cited.

As to what the rights of the parties are when an infant elects to disaffirm a contract relative to the sale or purchase of personal property, other than as authorized by statute or for necessaries, this Court in the Collins case, supra, in opinion by Stacy, C. J., declared, in pertinent part: "1. An infant may avoid such a contract either during his minority or upon arrival at full age * * *

"2. Upon such avoidance, the infant may recover the consideration paid by him, either in money or property, with the limitation that he must restore whatever part of that which came to him under the contract he still has, or account for so much of its value as may have been invested in other property which he has in hand or owns and controls * * *

"3. But the infant is not required to account for the use or depreciation of the property while in his possession, or for its loss, if squandered or destroyed, for this is the very improvidence against which the law seeks to protect him * * *

"4. The infant, however, would be liable for any tortious use or disposition of the property after such avoidance and before its surrender to those from whom it was obtained * * *."

In the light of these principles, applied to facts of case in hand, the plaintiff at the time an infant, was entitled, during his minority, to disaffirm the contract made by him with defendant for the purchase of the automobile in question. And upon such avoidance he was entitled to recover the consideration paid by him, either in money or property, with the limitation that he restore whatever part he still has of the automobile which came to him under the contract.

And the jury, upon the pleadings, supported by evidence tending to show controversy as to the fact, having found that only $600 of the money which was paid for the automobile belonged to plaintiff, and the parties having by the answer to the ninth issue stipulated that the value of the automobile, on date (January 8, 1958) plaintiff gave notice to defendant of his disaffirmance of the contract of purchase, was $50, plaintiff was entitled to judgment for the $600, less the $50, or $550, with interest and costs as rendered by the trial judge.

Now, as to plaintiff's appeal, from denial of his motion for judgment on the pleading:

In this connection a motion for judgment on the pleadings is in the nature of a demurrer, and is allowable only where the pleading of the opposite party is so fatally deficient in substance as to present no material issue of fact. Erickson v. Starling, 235 N.C. 643, 71 S.E.2d 384, and cases cited.

Applying this principle, it may not be held that the pleadings here raise no issue as to what was amount of the purchase price plaintiff paid.

Lastly, as to defendant's appeal: While confessing awareness of the general law with reference to contracts with infants, defendant, through its counsel, thinks "that the time has come when the courts should make a distinction in dealing with articles such as automobiles which an infant is permitted under statute to drive and for which an infant is responsible to the State and to society for a violation of the rights by which an automobile may be operated." It is not so written. This Court interprets and does not make the law.

Since neither plaintiff nor defendant prevails in this Court on points upon which the judgment is challenged, each party will bear the cost of his own brief, and the remaining cost of appeal will be taxed by the Clerk equally upon plaintiff and defendant.

Hence on plaintiff's appeal—no error.

On defendant's appeal—no error.

MOORE, J., took no part in consideration or decision of this appeal.