Opinion
13571
February 2, 1933.
Before GEORGE WARREN, SPECIAL JUDGE, Williamsburg, October, 1930. Affirmed.
Suit by the Virginia-Carolina Chemical Corporation against J.M. Chandler. From a decree for defendant, plaintiff appeals.
The order and decree of the Special Judge follow:
This matter comes before me from the report of the referee in this case, dated February 16, 1931, signed by F.R. Hemingway, Esq. It appears that attorneys have been substituted in place of Hon. Philip H. Stoll, who appeared as attorney for the defendant. At Kingstree, this Court heard argument in full of Mr. Ard, representing the plaintiff, and Mr. Meadors, representing the defendant, who is substituted as defendant's attorney on the statements made in open Court.
The special referee made his complete report to the Court and recommended that the Court hold that the mortgage in question, given by J.M. Chandler while a minor to the plaintiff, be declared valid, because (1) the mortgage was given for "necessities" or "necessaries" under the statutes, and (2) the mortgage had been ratified and confirmed by the defendant, J.M. Chandler, during the time that he was "sui juris," or since he has become of age. The Court announced that there was no question about fertilizer being a necessity or a necessary thing for the minor to have. It appeared to the Court that "fertilizer" was not a necessity or necessary thing for the minor to have, even under the testimony, and this was announced and the argument was based upon a consideration largely of the other question. Careful consideration has been given to all of the testimony and the exhibits in the record as to any act on the part of J.M. Chandler since reaching his maturity which would confirm or ratify the giving of the mortgage in question during his minority. The mortgage was given on March 3, 1928, by J.M. Chandler to the plaintiff, was due August 15, 1928, with interest after August 15, 1928, at 8 per cent. per annum, and provided for the payment of 15 per cent. attorney's fees. It is admitted that J.M. Chandler became of age February 29, 1929. At the time of the giving of the mortgage, he was not of age, and one of the questions resolves itself around the affirmation, ratification, or acts amounting to estoppel since he became of age.
After considering the testimony, I find that there is testimony to the effect that J.M. Chandler said that he was going to pay it (evidently the debt) as soon as he could; and he said in 1929 he could not pay it. The matter of forbearance on the part of the plaintiff has been brought up in this case, but nothing in the record discloses that forbearance was made to J.M. Chandler on account of any of his acts or deeds or promises. It is true that B.J. Chandler, the father of J.M. Chandler, got the 1928 crops of J.M. Chandler, and made payments on J.M. Chandler's paper; but those were the acts of B.J. Chandler, not acts of ratification on the part of J.M. Chandler, his son. It is also true, as has been forcefully argued to the Court, that B.J. Chandler arranged with the attorney for the plaintiff for preparation for bond for title for J.M. Chandler to sign, and that B.J. Chandler saw the attorney for the plaintiff in this case a number of times about the entire matter, promising payment.
The question has arisen: Do these matters constitute ratification amounting to estoppel to assert infancy as stated in this order?
After careful consideration of all of the facts of the case, and giving study to the citation of authority by the counsel in the case, taking into consideration all of the decisions as cited, it is ordered that in so far as the report of the special referee in this case finds the amount of the indebtedness, the amount of the attorney's fees, and interest allegedly due according to the papers as written, and in so far as the report of the special referee states the dates of the giving of the paper, the age of the defendant, the same be and it is hereby upheld and confirmed by the Court; but it is further ordered that the report of the special referee be, and the same is hereby, reversed in all other respects.
It is further ordered that the note and mortgage referred to in the complaint, dated March 3, 1928, signed J.M. Chandler, for the sum of $500.27, and the mortgage bearing a like date, for the same sum, to the plaintiff, covering the lot in the town of Hemingway, S.C. witnessed by B.J. Chandler and another, recorded in Volume 1 of Mortgages No. 38, page 272, in Williamsburg County, S.C. on March 6, 1928, be, and the same is hereby, adjudged null, void and of no legal force and effect; and that the Clerk of Court for Williamsburg County, S.C. is authorized from the records in this case to take the said mortgage and mark it cancelled under this order.
It may be well for the Court to state that the decisions cited to the Court were given consideration, and that the Court subjected the testimony in the case to scrutiny as to acts of ratification on the part of J.M. Chandler after he became of age.
Messrs. E.L. Ard and A.C. Hinds, for appellant, cite: As to contract voidable and not void: 15 S.C.L., 241; 18 S.C.L., 114; 20 S.C.L., 479; 43 S.C. 57; 11 S.C. 412; 27 S.C. 300; 29 S.C. 414; 33 S.C. 385; 76 S.C. 569; 79 S.C. 412. Rights of parties litigant are fixed at time suit commenced: 14 S.C. 434; 17 S.C. 123; 27 S.C. 309; 30 S.C. 499; 32 S.C. 57; 37 S.C. 444; 45 S.C. 677; 96 S.C. 345. Infant's right to elect: 36 L.R.A. (N.S.), 33; 13 C.J., 606, 119 F., 475; 128 S.W. 273; 6 R.C.L., 315; 1 S.C. 273; 5 Rich. Eq., 570; 74 Am. Dec., 649. Party seeking protection of Statute of Frauds must plead it: 61 S.C. 393; 79 S.C. 134; 83 S.C. 394; 111 S.C. 376; 128 S.C. 243. Estoppel by conduct: 31 S.C. 153; 9 S.E., 803; 17 A.S.R., 22; 57 S.C. 267; 35 S.E., 481; 88 S.C. 296; 105 S.C. 416; 67 S.C. 432.
Mr. M.L. Meadors, for respondent, cites: As to confirmation of infant's act: 27 S.C. 300; 3 Rich., 175; 15 S.C.L., 241; 68 S.C. 286; 70 S.C. 561; 33 S.C. 285; 11 S.E., 968; 79 S.C. 407; 57 S.C. 151; 35 S.E., 499; 76 S.C. 570; 129 S.C. 301. Any point to be considered on appeal must have been passed upon in Court below: 86 S.C. 217; 103 S.C. 75; 117 S.C. 516; 40 S.C. 352; 124 S.C. 415; 131 S.C. 284. Equitable estoppel: 79 S.C. 413; 132 S.C. 72; 14 R.C.L., 232; 3 Rich. Law, 164; 102 U.S. 300; 26 L.Ed., 87; 44 Am. Dec., 283; 79 S.C. 412; 60 S.E., 951. Infant bound only by contracts for necessities: 22 Strob. Eq., 289; 2 McC., 20; 5 Rich., 274.
February 2, 1933. The opinion of the Court was delivered by
The defendant, an infant a little over twenty years of age at the time, gave to the plaintiff a promissory note, the payment of which was secured by a mortgage of real estate, the legal title to which was in the defendant. The consideration of the mortgage debt was the purchase price of fertilizers sold to the defendant, as alleged, to be used by him in his agricultural pursuits. The debt not having been paid in full, plaintiff instituted this action for foreclosure of the mortgage. The plea of infancy was set up by the defendant.
The special referee found in favor of the plaintiff, holding that the fertilizers were "necessaries," and that the infant, upon obtaining his majority, had not avoided the contract and was estopped by his actions to avoid it.
The special Presiding Judge Hon. George Warren, reversed the conclusions of the referee. He held there had been no ratification by, or estoppel on the part of, the infant after he became of age. He seems to have held also that fertilizers, under the testimony in the case, were not shown to have been "necessaries" for the use of the infant.
The plaintiff has appealed from the circuit decree to this Court.
We agree with the holdings of the Special Presiding Judge.
Conceding for the moment that fertilizers may be classed as "necessaries" for an infant who is engaged in agriculture, about which matter there is some doubt (see 31 C.J., 1078, and 14 R.C.L., 256), we do not think the fertilizers furnished to the infant in this case were "necessaries" for him. We think the fertilizers were really sold for the benefit of the father of the infant. The father seemed to have handled the transactions more than they were handled by the infant. The payments on the mortgage debt were made by the father and not by the infant. The father testified: "The companies would not sell the fertilizer to me. Jim (agent of the plaintiff, fertilizer company) knew I had a lot there in Hemingway in the boy's name, and he said he could sell the fertilizer to the boy after I could not finance the farm. I told him I would sign this paper, but he said don't do it."
That testimony was not disputed, and all the circumstances seem to support its truth.
We think the case is governed very much by the decision of this Court in Beam v. McBrayer et al., 132 S.C. 72, 128 S.E., 34, in which Mr. Justice Marion delivered a clear and interesting opinion.
Counsel for the appellant, in their strong and lucid argument, have reviewed many decisions, which we do not think are applicable, since they were rendered by the appellate Courts of this State prior to the enactment of what is now Section 7048 of the 1932 Code, as to "Actions on Promises as to Contracts Made during Infancy." Mr. Justice Marion, in the Beam case, showed the effect of that statute on the subjects of estoppel and ratification on the part of an infant after reaching majority as to transactions engaged in by him during his minority.
The decree of the Special Circuit Judge, which will be reported, is affirmed.
MESSRS. JUSTICES STABLER and BONHAM, and MR. CIRCUIT JUDGE G.B. GREENE, ACTING ASSOCIATE JUSTICE, concur.