From Casetext: Smarter Legal Research

Standard Motors, Inc. v. Raue

Court of Appeals of Alabama
Jun 2, 1953
65 So. 2d 829 (Ala. Crim. App. 1953)


1 Div. 622.

June 2, 1953.

Appeal from the Circuit Court, Mobile County, Cecil F. Bates, J.

Vincent F. Kilborn and Fred G. Collins, Mobile, for appellant.

Where infant elects to disaffirm a contract made during minority, he has the duty of restoring to other party consideration he has received under the contract to the extent, at least, that he has the consideration in his possession. Bell v. Burkhalter, 176 Ala. 62, 57 So. 460; McCarty-Greene Motor Co. v. McCluney, 219 Ala. 211, 121 So. 713; 27 Am.Jur. Infants, § 45. When a promise is made to two or more persons jointly all of the obligees must unite as plaintiffs suing upon the contract. Beatty v. McMillan, 226 Ala. 405, 147 So. 180; 9 Am.Jur. — Cancellation Intr. § 54. When a party is necessary to a cause of action, non-joinder will be noticed ex mero motu by the court. Alabama Fidelity Mort. Bond Co. v. Dubberly, 198 Ala. 545, 73 So. 911; Steele v. Crute, 208 Ala. 2, 93 So. 694; Lacey v. Gen. Bond Mortg. Co., 226 Ala. 429, 147 So. 177.

D.P. Moore, Mobile, for appellee.

The automobile was returned by plaintiff to defendant, the seller, and this was sufficient restoration. It was not necessary that the other parties joining in the contract be made parties. The payment made and sought to be recovered was with the funds of the minor. He could not be estopped in assertion of his rights by the acts of others. Clark v. Goddard, 39 Ala. 164.

The plaintiff brought an action for the recovery of money paid on the purchase price of an automobile.

The cause was tried by the court without the intervention of a jury, and resulted in a judgment for plaintiff for $422. Defendant appeals.

The evidence for plaintiff was to the effect that on February 3, 1950, Leon F. Raue, a minor, purchased from defendant a used 1948 Model Oldsmobile Coupe for the total price of $2,413.60, paying $400 cash on the purchase price.

On June 5, 1950, the minor returned the car to defendant's used car lot and after the manager had declined to accept the keys plaintiff threw them on the car seat and left the car on the lot. His demand for the return of the down payment was also refused.

It is settled law that the contract of an infant, other than contracts for necessaries, is voidable at his election at any time during his minority or within a reasonable time after attaining his majority, and the disaffirmance of his contract renders it void ah initio. Shropshire v. Burns, Adm'r, 46 Ala. 108; Keller v. Ray Motor Company, 22 Ala. App. 252, 114 So. 422; Bell v. Burkhalter, 176 Ala. 62, 57 So. 460; Commercial Credit Co. v. Ward Son Auto Co., 215 Ala. 34, 109 So. 574; Tatum v. Montgomery Banking Co., 33 Ala. App. 186, 31 So.2d 311. And upon rescinding a contract of sale he is entitled to recover from the seller what he has parted with.

It is the appellant's contention that plaintiff was merely one of three purchasers of the automobile introducing on the trial a conditional sale contract bearing the signatures of plaintiff, his mother, Mrs. W.E. Raue, and his sister, Rose Mary Raue, and urges that the mother and sister, being parties to the contract, should have been united as parties plaintiff and that the court should have taken cognizance ex mero motu of their nonjoinder.

This contention is without merit. The suit is not upon the contract. It is an action by the minor, after disaffirmance of the contract, to recover a sum of money which under the undisputed evidence was his property and paid by him to defendant.

Moreover, the right to avoid a contract because of infancy is a privilege personal to the infant and is not extended for the benefit of others. The plaintiff's right to rescind because of his minority is separate and distinguishable from the rights of the other parties to the contract, and his assertion of such right would not affect the contractual obligations of the other parties. Wharen v. Funk, 152 Pa. Super. 133, 31 A.2d 450.

Appellant insists it was the duty of plaintiff upon his disaffirmance of the contract to deliver the automobile to the First Finance, Incorporated, defendant having assigned the contract the day after the sale, and plaintiff having made three monthly payments of $83.90 each to the finance company.

An infant, upon arriving at his majority, may not repudiate or disaffirm his contract, except upon condition that he restores or abandons to the use of the other party whatever remains in his possession of the consideration received. But during minority, if he has wasted or consumed the consideration he is not required to refund it and it is not a condition precedent to the avoidance of his contract that the other party be placed in statu quo. Drennen Motor Car Co. v. Smith, 230 Ala. 275, 160 So. 761; Bell v. Burkhalter, 176 Ala. 62, 57 So. 460. Defendant, under his undisputed evidence, was nineteen years of age.

Furthermore, the property was restored to the party with whom the infant contracted and it is immaterial that the seller's assignee was not notified. 43 C.J.S., Infants, § 47; Spencer v. Collins, 156 Cal. 298, 104 P. 320. See also Bryan v. First National Bank of Brantley, 217 Ala. 50, 114 So. 576.

The judgment of the lower court is affirmed.


Summaries of

Standard Motors, Inc. v. Raue

Court of Appeals of Alabama
Jun 2, 1953
65 So. 2d 829 (Ala. Crim. App. 1953)
Case details for

Standard Motors, Inc. v. Raue

Case Details

Full title:STANDARD MOTORS, Inc. v. RAUE

Court:Court of Appeals of Alabama

Date published: Jun 2, 1953


65 So. 2d 829 (Ala. Crim. App. 1953)
65 So. 2d 829

Citing Cases

Wells Fargo Bank, N.A. v. Chapman

Maggie was entitled to disaffirm her contract during her minority or within a reasonable time after she…

Wallace v. Francis

By filing his suit appellant repudiated his contract. Smoot v. Ryan, 187 Ala. 396, 65 So. 828; Standard…