McManus, Robert H.

English

University of Miami School of Law

University of Miami Law Review Volume 22 Number 4 Article 13 5-1-1968 Contracts of an Infant -- The Necessary Automobile Robert H. McManus Follow this and additional works at: https://repository.law.miami.edu/umlr Recommended Citation Robert H. McManus, Contracts of an Infant -- The Necessary Automobile, 22 U. Miami L. Rev. 979 (1968) Available at: https://repository.law.miami.edu/umlr/vol22/iss4/13 This Case Noted is brought to you for free and open access by the Journals at University of Miami School of Law Institutional Repository. It has been accepted for inclusion in University of Miami Law Review by an authorized editor of University of Miami School of Law Institutional Repository. For more information, please contact library@law.miami.edu. CASES NOTEDCONTRACTS OF AN INFANT-THE NECESSARY AUTOMOBILEThe plaintiff, a minor, bought a new car from the defendant seller.The plaintiff used the car for seven months and then elected to disaffirmthe purchase by notifying the seller of his intention and by offering toreturn the vehicle upon a refund of the purchase price. The plaintiff thenbrought suit to rescind the contract and to have the purchase price re-funded in full. The trial court entered judgment for the seller, statingthat the car was a necessity for the plaintiff and that recission would notbe allowed. On appeal to the District Court of Appeal, Third District,held, affirmed: The fact that the car was used by the plaintiff to carryon his school, business and social activities supported the chancellor'sfinding that the car was a necessity. Furthermore, even if the plaintiffwere entitled to recission, the seller could set-off the depreciation in valuefrom the date of sale up to the time of disaffirmance. Rose v. SheehanBuick, Inc., 204 So.2d 903 (Fla. 3d Dist. 1967).Generally, an infant has the right to disaffirm or avoid his contractswhile still a minor or within a reasonable time after reaching his majority.1The contracts of a minor are thus voidable, not void, and are valid untilthe minor elects to disaffirm. The reason for giving the infant the rightto avoid his contracts was stated by the Supreme Court of Florida in1911:The right of an infant to avoid his contract is one con-ferred by law for his protection against his own improvidenceand the designs of others; and, though its exercise is not in-frequently the occasion of injury to others who have in goodfaith dealt with him, this is a consequence which they mighthave avoided by declining to enter into the contract. It is thepolicy of the law to discourage adults from contracting withinfants .... 2A major exception to the right of disaffirmance is that the minor isliable for any "necessaries" he buys. This exception, in part a recognitionof the hardship often wrought on those who deal with infants, is rational-ized on the basis that the imprudence of the minor in purchasing neces-sities is immaterial except as to the price agreed to be paid.The problem with the exception is how to define it in its correctapplication. For example, in the instant case, the problem is whetheran automobile is a necessity for which an infant is liable. In describingwhat constitutes a necessity, Lord Coke stated:[A]n infant may bind himself to pay for his necessary meat,drinke, apparell, necessary physicke, and likewise for his good1. S. W=sToN, CONTRACTS 1 226 (3d ed. 1959).2. Putnal v. Walker, 61 Fla. 720, 721, 55 So. 844, 845 (1911).1968]UNIVERSITY OF MIAMI LAW REVIEW [VOL. XXIIteaching or instruction, whereby he may profit himself after-ward.$Modern courts look upon necessaries as a relative term' includingeven things used for the comfort of the minor. 5 However, the courts gen-erally have not regarded the automobile as a necessary for the minor.6Where an automobile is used solely for pleasure or for the enhancementof social status it cannot be a necessary and the minor may disaffirm thecontract of sale.7 Close questions arise where the minor uses the car tocommute to and from work. Even where the place of employment is fiveor ten miles away, however, courts have been reluctant to find the minorliable on his contract of purchase," especially where other means oftransportation are available to the minor, such as another family car,public transportation, or the opportunity to walk.9 Probably what isrequired by most courts is that the automobile be an actual necessity usedby the infant to earn his livelihood.1"It is difficult to find a case where an automobile was held to be anecessity before the Mid-1950's. Recently a few courts, because of the3. E. CoIE, INSTITUTES OF LAW OF ENGLAND J 172(a) (1797).4. [Tlhere is no hard and fast rule by which it may be determined just what isand what is not requisite for the reasonable convenience of a minor, and . . . thatquestion is one which must, of necessity, depend upon the particular facts and cir-cumstances of each case ....Braham & Co. v. Zittel, 232 App. Div. 406, 409, 250 N.Y.S. 44, 46 (Sup. Ct. 1931).5. "Necessaries," in the technical sense, mean such things as are necessary to thesupport, use or comfort of the person of the minor, as food, raiment, lodging,medical attendance, and such personal comforts as comport with his condition andcircumstances in life, including a common school education; but it has been pithlyand happily said, that necessaries do not include "horses, saddles, bridles, liquors,pistols, powder, whips and fiddles."Price v. Sanders, 60 Ind. 310, 314 (1878).6. Annot., 78 A.L.R. 392 (1932).7. Crockett Motor Co. v. Thompson, 177 Ark. 495, 6 S.W.2d 834 (1928) (car usedonly for pleasure is not a necessity); Pelham v. Howard Motors, Inc., 20 III. App. 2d 528,156 N.E. 597 (1959); Bowling v. Sperry, 133 Ind. App. 692, 184 N.E.2d 901 (1962). Seealso Arkansas Reo Motor Car Co. v. Goodlett, 163 Ark. 35, 258 S.W. 975 (1924), where thecourt said that an automobile could not be considered as a necessary for a girl or boy under18 years of age.8. Harris v. Raughton, 37 Ala. 648, 73 So.2d 921 (Ct. App. 1954) (automobile was nota necessity, even though the minor was married and purchased the auto for use as a con-veyance to and from employment which was a distance of 8 miles); Schoenung v. Gallet,206 Wis. 52, 238 N.W. 852 (1931) (automobile was not a necessity for the personal use orsupport of the minor; the mere fact that his place of employment was three miles fromthe home of his parents, with whom he lived, did not necessitate his ownership of anautomobile).9. Perry Auto Co. v. Mainland, 229 Iowa 187, 294 N.W. 281 (1940). (The distance towork was one and a half miles. When the minor had an auto he used it, when he did not,he walked.) Schoenung v. Gallet, 206 Wis. 52, 238 N.W. 852 (1931) (brother's auto wasavailable for transportation).10. Russell v. Buck, 116 Vt. 40, 68 A.2d 691 (1949) (even though trucking was theonly means by which the infant supported his family, the court held that the truck wasnot a necessity since the use of the truck was not the only means of earning a livelihoodopen to the infant) ; Robertson v. King, 225 Ark. 276, 280 S.W.2d 402 (1955) (pickup truckwas not a necessity, where it appeared that the purchaser-minor had quit school and wasearning his own living).CASES NOTEDever-increasing distances involved in commuting, have expressed the morerealistic view that an automobile may be a necessary link in the chainof physical survival in today's world. Commenting on a contractual ar-rangement made by a minor for transportation to his job, the SupremeCourt of Kansas stated:It might be said that earlier in the history of our country,when industry was centralized in cities or industrial commu-nities where housing was adequate and public transportation, byway of the streetcar, the bus or the community train, was avail-able to all, private transportation was not necessary for onegetting to and from his work. However, since World War IIthere has been a tremendous growth in our country's population,and in this highly industrial age, where industry has the tend-ency to decentralize and move to less populated or rural com-munities within which there is a shortage of housing and verylittle, if any, public transportation available, the worker is, asa result, required to commute long distances to and from hisplace of employment. We are, therefore, of the opinion thatprivate transportation for the worker is now a necessity.1'The court took notice of the fact that in order for the minor to hold hisjob, he had to get to and from work. Therefore, the arrangement wasnecessary insofar as the minor was concerned. 2Because of the rapid changes in our way of life, courts in the future,as the court in the instant case, will undoubtedly recognize the fact thatan automobile is, for many minors, a necessity.The court was also faced with the issue of whether the seller has aright to a deduction for the use or depreciation of goods purchased byan infant.Although given the right to disaffirm a contract, an infant should notbe able to retain an advantage from his dealings with an adult. Therefore,upon disaffirmance, the infant must return the property in his possession.'However, if the infant has disposed of the goods, generally he still hasa right to disaffirm and is not required to place the other party in statusquo.1411. Ehrsam v. Borgen, 185 Kan. 776, 780, 347 P.2d 260, 263 (1960).12. Id.13. See generally S. Wn.ITSTON, CONTRACTS § 238 (3 ed. 1955). Some jurisdictions havebroadened this rule to require the infant to return either the property which remains in hishands in specie or any other property which the specific property was exchanged for. SeeIn re Bierman, 271 F. Supp 774, 776 (S.D. Ohio 1967).The prerequisite of returning the auto prior to the disaffirmance is not always helpfulto the seller since the limitation of goods in the minor's possession may come into play.For example, a minor may have the car in his possession but a finance company will beholding title. Upon disaffirmance the auto would be returned but not the title. See Keser v.Chagnon, 159 Colo. 209, 410 P.2d 637 (1966).14. MacGreal v. Taylor, 167 U.S. 688 (1897) (the minor need only return the fruitsof the contract that are then in his possession and if for any reason he cannot place the1968]UNIVERSITY OF MIAMI LAW REVIEW [VOL. XXIIMost courts refuse to allow the vendor any set-off for depreciationand permit the infant to recover the entire purchase price or as muchof it as has been paid. 15 The reason given by these courts for not allowingthe seller a deduction is that depreciation due to the minor's use or misuseis a result of the very improvidence from which the law seeks to protectthe minor and which those who deal with him must anticipate. One courthas said:The infant is not required to account for the use or depre-ciation of the property while in his possession, or for its loss, ifsquandered or destroyed, for this is the very improvidenceagainst which the law seeks to protect him."6A minority of jurisdictions, however, along with the court in theinstant case, would permit the seller to deduct for use and depreciation. 7The reasoning of these courts, as seen in the following language, is thatthe minor should as a matter of justice be held accountable for his use ofthe property up to the time he disaffirms the contract:[T] he plaintiff, having had the use of the bicycle during thetime intervening between her purchase and its return, ought, injustice and in fairness, to account for its reasonable use or de-terioration in value. Otherwise she would be making use of theprivilege of infancy as a sword, and not as a shield. In theabsence of wanton injury to the property, the value of the usewould be deemed to include the deterioration in value ....Since the instant case was an equitable cause of action, the courtbased its reasoning for allowing a depreciation deduction on the equitablemaxim "he who seeks equity must do equity." For a comparison, thecourt cited the United States Supreme Court case of Myers v. HurleyMotor Company.'9 The distinction between Myers and the instant caseis that in Myers the infant had fraudulently represented that he was anadult; whereas in the instant case the minor at no time held himself outother party in status quo, he does not because of such inability lose his right to disaffirm) ;Weathers v. Owen, 78 Ga. 520, 51 S.E.2d 584 (App. Ct. 1949); Bowling v. Sperry, 133Ind. App. 692, 184 N.E.2d 901 (1962).15. Arkansas Reo Motor Car Co. v. Goodlett, 163 Ark. 35, 258 S.W. 975 (1924);Utterstrom v. Kidder, 124 Me. 10, 124 A. 725 (1924); Reynolds v. Garber-Buick Co., 183Mich. 157, 149 N.W. 985 (1915) (regardless of wear which he has given it, the minor mayrecover back the money paid for the automobile) ; Collins v. Norfleet-Baggs, Inc., 197 N.C.659, 150 S.E. 177 (1929).16. Collins v. Norfleet-Baggs, 197 N.C. 659, 660, 150 S.E. 177, 178 (1929).17. Rodriguez v. Northern Auto Auction, Inc., 35 Misc. 2d 395, 225 N.Y.S.2d 107 (Sup.Ct. 1962); Scalone v. Talley Motors, Inc., 3 App. Div. 674, 158 N.Y.S.2d 615 (Sup. Ct.1957); Rice v. Butler, 160 N.Y. 578, 55 NE. 275 (1897) (bicycle); Petit v. Liston, 97Ore. 464, 191 P. 660 (1920) (motorcycle).18. Rice v. Butler, 160 N.Y. 578, 580,55 N.E. 275, 276 (1897).In Toon v. Mack Intl Motor Truck Co., 87 Cal. App. 151, 262 P. 51 (1927), thevendor was even allowed to recover for depreciation in excess of amounts paid to him bythe infant.19. 273 U.S. 18 (1927).CASES NOTEDto be an adult.2° In Myers, the Court first decided that, although theauthority was in conflict,2 ' the minor was not estopped to maintain anaction by reason of his misrepresentations. On the question of whether thedefendant seller may, by way of affirmative defense against the minorplaintiff's claim, set-off the amount for use, the court stated:How far the equitable maxim, that he who seeks equitymust do equity, applies generally in suits brought for relief be-cause of infancy, we need not inquire .... The maxim applies,at least, where there has been, as there was here, actual fraudon the part of the infant. When an infant of mature appearance,by false and fraudulent representations as to his age, has in-duced another person to sell and deliver property to him, it isagainst natural justice to permit the infant to recover moneypaid for the property without first compelling him to accountfor the injury which his deceit has inflicted upon the otherperson .22The court in the instant case, by stating that it would recognize theseller's right to depreciation if the minor were allowed to rescind thecontract, seemed to balance properly the equities in an effort to find aline of distinction between protecting the minor and preventing him fromusing his privilege of contractual avoidance so as to do injustice to others.To be sure, a minor has an interest that the law should protect, but itshould be accomplished with the least possible injury to those who dealwith him. The sanctity of infancy should not be preserved when justicerequires a remedy for his innocent victims.ROBERT H. MCMANUS20. The court in the instant case held that the mere fact that the minor "might havehad the appearance of a person over twenty-one years of age could not constitute misrepre-sentation." Rose v. Sheehan Buick, Inc. 204 So.2d 903, 905 (Fla. 3d Dist. 1967).21. See generally S. WILISTON, CONTRACTS '§ 245 (3d ed. 1955). If the infant is guiltyof actual misrepresentation of his age the authorities are not uniform, but the view isgenerally accepted that the minor is not precluded from disaffirming his contracts. For aFlorida case, however, where the minor was estopped to disaffirm his purchase, see MoslerAcceptance Co. v. Perlman, 47 So.2d 296 (Fla. 1950).22. Myers v. Hurley Motor Co., 273 U.S. 18, 26 (1927).1968]

Contracts of an Infant -- The Necessary Automobile

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Contracts of an Infant -- The Necessary Automobile

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