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Carney v. Southland Loan Co., Inc.

Court of Appeals of Georgia
Jun 15, 1955
92 Ga. App. 559 (Ga. Ct. App. 1955)




Complaint. Before Judge Parker. Fulton Civil Court. March 28, 1955.

Marvin O'Neal, Jr., John Tyler, for plaintiff in error.

Troutman, Sams, Schroder Lockerman, Tench C. Coxe, contra.

A minor, who, having reached the age of discretion and having all the appearances of having reached his majority, induces another to enter into a contract with him and part with his property, by falsely and fraudulently representing that he has reached his majority, is estopped to repudiate the contract on the ground of his minority where such other person acting in good faith accepted such representation as true and was guilty of no negligence in failing to ascertain such minor's true age.


Hubert Carney, a minor, by his mother as next friend, brought an action in assumpsit against Southland Loan Company, Incorporated, to recover monies paid. The material allegations of his petition as finally amended are substantially as follows. The defendant is indebted to the plaintiff in the amount of $454.30 by reason of the following facts: (a) The defendant lent the plaintiff $800 and the plaintiff executed a bill of sale to secure debt to the defendant; (b) The plaintiff thereafter paid the defendant the sum of $454.30 on the debt; (c) When the plaintiff executed the bill of sale to secure debt he was a minor and he is a minor at the time of the filing of the present suit; (d) Subsequently to the execution of the bill of sale to secure debt, the plaintiff repudiated the contract; (e) The defendant then took possession of the plaintiff's automobile and disposed of it; (f) The defendant did not refund the $454.30 paid to it by the plaintiff and fails and refuses to do so: and (g) The automobile in question was worth $1,200 when the plaintiff took possession of it. The prayer of the petition was that the plaintiff have judgment against the defendant in the amount of $454.30.

The defendant filed its answer denying every material allegation of the plaintiff's petition, and also filed a cross-action against the plaintiff. The material allegations of the cross-action, as finally amended, are substantially as follows. The plaintiff, Hubert Carney, the defendant in this cross-action, is indebted to Southland Loan Company, the plaintiff in this cross-action, in the sum of $631.20 by reason of the following facts. On March 24, 1953, Southland Loan Company purchased from W. O. Whiteside a note and conditional sales contract executed by Hubert Carney in the amount of $1,210.50, covering a 1949 Pontiac Chieftain automobile, a copy of which is attached and made a part of the cross-action. Carney paid Southland Loan Company the sum of $454.30 in time payments on the note, but failed to keep up the payments and maliciously misused the car and abandoned it to Southland Loan Company, who sold it for the sum of $125 on February 4, 1954. The prayer of the cross-action was that the plaintiff in the cross-action have judgment in the amount of $631.20 and that the prayers of the plaintiff in the main case be denied.

On the trial of the case, the trial court entered the following judgment: "The within and foregoing case having regularly come for trial without a jury and after hearing all the evidence, it is considered, ordered and adjudged that the prayers of the plaintiff for judgment be denied and that the defendant, Southland Loan Company, Inc., do have and recover of the plaintiff, James Hubert Carney, the sum of . . . $631.20 and ____ dollars as costs of this action on the defendant's cross-bill."

Carney, the plaintiff in the main case and defendant in the cross-action, filed his motion for a new trial, based solely on the general grounds, which was overruled, and he has brought the present writ of error to this court to have that judgment reviewed.

The contract under which Carney made the payments which he seeks to recover in his action is the same contract upon which Southland Loan Company is seeking to recover an unpaid balance in its cross-action. The gist of Carney's action is that he, as a minor, is entitled to repudiate the contract under the provisions of Code § 20-201 and to recover the payments made under the contract, as the automobile covered by the contract has been returned to Southland. The gist of Southland's answer and cross-action is that it does not owe Carney the payments which he made under the contract as he was not a minor at the time of its execution, and that Southland is entitled to recover the unpaid balance due under its valid contract with Carney. It was on these issues that the case went to trial.

On the trial it appeared from the evidence without dispute that Carney was in fact a minor at the time of the execution of the contract and that the automobile had been repossessed by Southland. Nothing more appearing, he would have been entitled as a matter of right to repudiate the contract, during his minority or within a reasonable time after reaching his majority, and to recover the payments which he had made under the contract. Gonackey v. General Accident, Fire c. Corp., 6 Ga. App. 381 ( 65 S.E. 53), and citations.

In support of its answer and cross-action, however, Southland introduced evidence showing that Carney, although he was in fact only nineteen years of age at the time of the execution of the contract, was a young man who was married and a father, and to all appearances had reached his majority. Southland also introduced evidence that when Carney made application to Southland for the loan covered by the contract, an application form was filled in by Southland's agent from information furnished by Carney and signed by Carney and that Carney fraudulently misstated his age to Southland's agent as twenty-two. There was also evidence from which it was inferable that the automobile was worth at least $1,210, the amount of the loan, at the time of the execution of the contract, and worth only $125, the amount for which it was sold, at the time it was repossessed by Southland.

While ordinarily waivers and estoppels are not imputable to infants, an estoppel in pais based on fraud and deceit will be imputed to an infant who has reached the age of discretion. Brown v. Anderson, 186 Ga. 220 (1) ( 197 S.E. 761), and citations. And, while generally a defendant who has failed to plead the defense of estoppel specially, can not be given the benefit of such defense even where evidence establishing the estoppel has been introduced without objection ( Henry Hutchinson, Inc. v. Slack, 91 Ga. App. 353, 85 S.E.2d 620, and citations), this rule does not apply where the plaintiff, without pleading estoppel, relies upon estoppel to defeat a defense raised by the defendant in his answer. Brown v. Globe Rutgers Fire Ins. Co., 161 Ga. 849 ( 133 S.E. 260), and citations; Metropolitan Life Ins. Co. v. Bugg, 48 Ga. App. 363 ( 172 S.E. 829); Central of Georgia Ry. Co. v. Tankersley, 133 Ga. 153 ( 65 S.E. 367). While Southland did not especially plead estoppel in its answer to Carney's action and would not be entitled to the benefit of that defense to defeat Carney's action, in its cross-action, Southland as plaintiff, was entitled to the benefit of estoppel, if proved, to defeat Carney's defense of minority.

In Hood v. Duren, 33 Ga. App. 203 (3) ( 125 S.E. 787), this court held: "A defendant is estopped from exercising his privilege of avoiding a fair and reasonable contract upon the ground of his minority at the time the agreement was made, where it appears that he has received, enjoyed and consumed its irrestorable benefits; and where it appears that the plaintiff, dealing in good faith, was induced to act to his injury by reason of the false and fraudulent representation of the defendant with respect to his apparent majority, and that, in view of all the surrounding facts and circumstances, the plaintiff was justified in accepting such representation as true, and was free from fault or negligence on his own part, such as a failure to use all ready means of ascertaining the truth touching the defendant's apparent majority." See also Watters v. Arrington, 39 Ga. App. 275 ( 146 S.E. 773); Clemons v. Olshine, 54 Ga. App. 290 ( 187 S.E. 711); Brown v. Anderson, supra. Under an application of this rule to the facts of the instant case, the trial court, sitting as judge and jury, was authorized to find that Carney was guilty of fraud and estopped to repudiate his contract and that consequently he could not recover on his action, and that Southland was entitled to recover on its cross-action brought on the contract for the unpaid balance under the contract.

The case of Woodall v. Grant Co., 62 Ga. App. 581 ( 9 S.E.2d 95), upon which Carney relies so strongly, contains no ruling in conflict with the ruling made here. In that case, the minor's only sin, if any, was his failure to read a contract which he signed and which stated that he was of age, while in the present case the minor falsely gave the information put into the contract that he was twenty-two years of age.

The evidence authorized the verdict and the trial court did not err in overruling the motion for a new trial, based solely on the general grounds.

Judgment affirmed. Townsend and Carlisle, JJ., concur.

Summaries of

Carney v. Southland Loan Co., Inc.

Court of Appeals of Georgia
Jun 15, 1955
92 Ga. App. 559 (Ga. Ct. App. 1955)
Case details for

Carney v. Southland Loan Co., Inc.

Case Details

Full title:CARNEY, by Next Friend, v. SOUTHLAND LOAN COMPANY, INC

Court:Court of Appeals of Georgia

Date published: Jun 15, 1955


92 Ga. App. 559 (Ga. Ct. App. 1955)
88 S.E.2d 805

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