International Textbook Co. v. McKone

The controversies of this litigation are ruled by the principles of the decision of Jones v. Valentines’ School, 122 Wis. 318, 99 N. W. 1043. This court there held that when an infant had contracted in writing for a course of instruction in a school, but had concluded not to *204take the course and had offered to return what lie had received under the contract and to terminate the agreement, no gTound of liability existed against him. This conclusion went upon the well-recognized principle that an infant is not liable upon either an executory or an express contract even for necessaries. Whatever liability attaches therefor is one wholly created by law, and can only arise when necessaries have actually been furnished to him. The undisputed facts of this case show that James McKone has not received the instruction embraced in the contract, and that before substantially any instruction had been imparted to him he informed plaintiff that he did not desire to take the instruction and that he repudiated the agreement, and offered to return all the hooks, papers, and appliances he had received. It was also found by the court that this offer was thereafter carried out by turning over these articles to the representatives of the plaintiff from whom he had received them. Under these circumstances plaintiff can have no claim against James McKone, because nothing has been received by him upon which an implied liability could he based.

From this it would follow that the father also owed nothing, if he he regarded as having only guaranteed payment of whatever sums were to become due under the son’s agreement. But we need not rest the question of the father’s liability upon this ground, for the facts clearly indicate that the father’s agreement was one whereby he undertook to answer for the debt or default of his son, and it is within the provision of the statute declaring such agreements void if they fail to express the consideration. This subject was recently considered in the case of Comm. Nat. Bank v. Smith, 107 Wis. 574, 83 N. W. 766, where the features distinguishing this from other classes of guaranty cases are pointed out, and it is shown that contracts like this are void because they fail to express the consideration.

We are of the opinion that the trial court’s conclusions *205upon the issues covering the rights of the parties are correct, and that it properly dismissed the complaint as to both defendants. Under the circumstances no necessity is presented for determining the question elaborated in the briefs of counsel as to plaintiff’s right to enforce the contract, in view of the provisions of sec. 1770Z>, Stats. (1898), and we therefore refrain from a consideration of it.

By the Court. — Judgment affirmed.