Cooper v. Allport

The plaintiff in this action being an infant bought certain property of the defendant for the sum of $250, and paid $100 on account and gave back a mortgage for $150, and entered into possession of the property. Shortly thereafter, claiming that he was an infant, he restored the property to the defendant, who accepted the same, and brought this suit by his guardian to recover the money which he had paid on account. The justice below decided in favor of the-plaintiff, and from that judgment this appeal is taken.

It is true that Parsons lays down the rule that “ if an infant advances money on a voidable contract which he after-wards rescinds, he cannot recover the money back, because it is lost to him by his own act, and the privilege of infancy-does not extend so far as to restore this money unless it was obtained from him by fraud.” And also that “if the infant pays money on his contract and enjoys the benefit of it, and then avoids it when he becomes of age, he cannot recover back the consideration paid.” But it is equally stated by Parsons that “ an infant can rescind his purchase and recover the price he paid, only when he is ready to return the thing purchased;” and it is also held “ that an infant has a right to avoid an ex-ecutory contract at any time before it becomes an executed contract.”

*353Although at first sight it may seem somewhat difficult to harmonize these principles, yet in the disposition of this case no difficulty stands in the way. As an infant’s executory contract is voidable he has a right to dis-affirm. Two persons, whether one is an infant and the other an adult or not, have the right to rescind a contract which had previously been made. Now, according to the evidence in this case, the contract between the infant and the defendant was by both parties rescinded, because the defendant received the property upon the admitted rescission of the infant, and he therefore accepted such rescission, and it is to be concluded from that fact that there was a mutual rescission between the parties. Under those circumstances the party who accepts the rescission is bound to pay over to the party rescinding all which he has received under the contract.

In view of this fact, the defendant having accepted his rescission, he was bound to repay that which he. has received under the contract which has been rescinded by the parties.

The judgment of the district court must therefore be affirmed.

Beach, J., concurred.

Judgment affirmed.