Same - Torts In Connection With Contracts

115. Though an infant is liable for his torts, a breach of contract cannot be treated as a tort, so as to make him liable. The tort must be separate and independent of it.

116. At common law, though it is otherwise in equity, an infant's false representations as to his age will not estop him from avoiding his contract; they may, however, render him liable in an action for deceit.

Though an infant is liable for his torts, it is well settled that a breach of contract cannot be treated as a tort, so as to make him liable. The wrong, according to the weight of authority, must be more than a misfeasance in the performance of the contract, and must be separate from and independent of it.89 "The test of an action against an infant," it has been said, "is whether a liability can be made out without taking notice of the contract." 90 Or, according to an Indian case: "The test, and the only satisfactory test, is supplied by the answer to the question: Can the infant be held liable without directly or indirectly enforcing his promise?"91 Thus an infant cannot be held liable for false warranty on the sale or exv. Insurance Co., 130 N. C. 23, 40 S. E. 822, 57 L. R. A. 505. See "Infants," Dec. Dig. (Key-No.) § 58; Cent. Dig. §§ 158, 159.

89 Jennings v. Rundall, 8 Term R. 335, Ewell, Lead. Cas. 185; Gilson v. Spear, 38 Vt. 311, 88 Am. Dec. 659; Eaton v. Hill, 50 N. H. 235. 9 Am. Rep. 189; Freeman v. Roland, 14 R. I. 39, 51 Am. Rep. 340; West v. Moore, 14 Vt. 447, 39 Am. Dec. 235; Campbell v. Perkins, 8 N. Y. at page 440; Campbell v. Stakes, 2 Wend. (N. T.) 137, 19 Am. Dec. 561; Mathews v. Cowan, 59 111. 341; Penrose v. Curren, 3 Rawle (Pa.) 351, 24 Am. Dec. 356, But see Vance v. Word, 1 Nott & McC. (S. C.) 197, 9 Am. Dec. 683; Peigne v. Sutcliffe. 4 Mo-Cord (S. C.) 387, 17 Am. Dec. 756; RICE v. BOYER, 108 Ind. 472, 9 N. E. 420, 58 Am. Rep. 53, Throckmorton Cas. Contracts, 143; Fltts v. Hall, 9 N, H. 441, An infant is not bound on his warranties in an application for insurance, and the insurer cannot defend an action on the policy by proving their falsity. O'Rourke v. Insurance Co., 23 R. I. 457, 50 Atl. 834, 57 L. R. A. 496, 91 Am. St. Rep. 643. A promise by an infant to marry is not binding on him, but he may nevertheless be held liable for his tort in seducing a woman under promise of marriage. Becker v. Mason, 93 Mich. 336, 53 N. W. 361. See "Infants," Dec. Dig. (Key-No.) § 59; Cent. Dig. §§ 161-166.

90 Lowery v. Cate, 108 Tenn. 54, 64 S. W. 1068. 57 L. R. A. 673 and note, 91 Am. St Rep. 744; Collins v. Gifford, 203 N. Y. 465, 96 N. E. 721, 38 L. R. A. (N. S.) 202, Ann. Cas. 1913A, 969. See "Infants," Dec. Dig. (Key-No.) §§ 56. 59; Cent. Dig. §§ 99, 100, 161-166.

91 RICE v. BOYER, 108 Ind. 472, 9 N. E. 420, 58 Am. Rep.53. Throckmorton Cas. Contracts, 143. See "Infants," Dee. Dig. (Key-No.) § 59; Cent. Dig. §§ 161-166.

change of a horse.92 And where an infant hired a horse to ride, and injured it by overriding, it was held that he could not be made liable upon the contract by framing the action in tort for negligence.93 On the other hand, where an infant hired a horse expressly for riding, and not for jumping, and then lent it to a friend, who killed it in jumping, he was held liable, because what he had done was not an abuse of the contract, but an act which he was expressly forbidden to do, and was, therefore, independent of the contract.94

The fraud of an infant in falsely representing himself to be of age, and so inducing another to contract with him, does not estop him from pleading his infancy if sued upon his contract.95 He may, however, in many jurisdictions, be held liable in an action for deceit.96 In equity, where the infant has falsely represented that he was of age, or taken active steps to conceal his age, or been otherwise guilty of fraud, and has thereby induced the other party to enter into the contract, his fraud will estop him from pleading his infancy to the other's prejudice.97 Mere failure to disclose his age, however, is not such fraud as will warrant equitable interference with the common-law rule;98 nor is mere misrepresentation of age sufficient, if it does not in fact deceive the other party.99 Where an infant obtains goods by false and fraudulent representations as to his age, the better opinion is that the other party may rescind and recover them back.1

92 Collins v. Gifford, 203 N. Y. 465, 96 N. E. 721, 38 L. R. A. (N. S.) 202, Ann. Cas. 1913A, 969; Green v. Greenbank, 2 Marsh. 485 (in which it is said "the assumpsit is clearly the foundation of the action; for it is in fact undertaking that the horse was sound"). See "Infants," Dec Dig. (Key-No.) § 62; Cent. Dig. § 168.

93 Jennings v. Rundall, 8 Term R. 335. He may, however, sue in trespass, though he cannot bring an action on the case, as the latter, but not the former, would be based on lawful possession in defendant under the contract. Campbell v. Stakes, 2 Wend. (N. Y.) 137, 19 Am. Dec. 561. See "Infants," Dec. Dig. (Keif-No.) § 61; Cent. Dig. § 167.

94 Burnard v. Haggis, 15 C. B. (N. S.) 45; Homer v. Thwing, 3 Pick. (Mass.) 492; Ray v. Tubbs, 50 Vt. 688, 28 Am. Rep. 519. But-see Penrose v. Curren, 3 Rawle (Pa.) 351. 24 Am. Dec.'356. See "Infants," Dec. Dig. (Key-No.) % 61; Cent. Dig. § 167.

95 RICE v. BOYER, 108 Ind. 472, 9 N. E. 420, 58 Am. Rep. 53, Throckmorton Cas. Contracts, 143; Studwell v. Shapter, 54 N. Y. 249; Burdett v. Williams (D. C.) 30 Fed. 697; Wieland v. Kobick, 110 111. 16, 51 Am. Rep. 676; Conroe v. Birdsall, 1 Johns. Cas. (N. Y.) 127, 1 Am. Dec. 105; Merriam v. Cunningham, 11 Cush. (Mass.) 40; Brown v. McCune, 5 Sandf. (N. Y.) 228; Burley v. Russell, 10 N. H. 184, 34 Am. Dec. 146; Conrad v. Lane, 26 Minn. 3S9, 4 N. W. 695, 37 Am. Rep. 412; Sims v. Everhardt, 102 U. S. 300, 26 L. Ed. 87; Norris v. Vance, 3 Rich. Law (S. C.) 164; Whitcomb v. Joslyn, 51 Vt. 79. 31 Am. Rep. 678; McKainy v. Cooper, 81 Ga. 679, 8 S. E. 312; Brooks v. Sawyer, 191 Mass. 151, 76 N. E. 953, 114 Am. St. Rep. 594; Harper v. Utsey (Tex. Civ. App.) 97 S. W. 508. But see Bradshaw v. Van Winkle, 133 Ind. 134, 32 N. E. 877; Lacy v. Pixler, 120 Mo. 383, 25 S. W. 206; Carolina Interstate Building & Loan Ass'n v. Black, 119 N. C. 323, 25 S. E. 975; New York Building Loan Banking Co. v. Fisher, 20 Misc. Rep. 244, 45 N. Y. Supp. 795. Contra, under Kansas statute, Dillon v. Burnham, 43 Kan. 77, 22 Pac. 1016. See "Infants," Dec. Dig. (Key-No.) § 56; Cent. Dig. § 100.

96 Fitts v. Hall, 9 N. H. 441; RICE v. BOYER, 108 Ind. 472, 9 N. E. 420, 5S Am. Rep. 53, Throckmorton Cas. Contracts, 143; Wallace v. Morss, 5 Hill (N. Y.) 391; Burley v. Russell. 10 N. II. 184, 34 Am. Dec. 146; Manning v. Johnson, 26 Ala. 446, 62 Am. Dec. 732; Eckstein v. Frank, 1 Daly (N. Y.) 334. Contra, Nash v. Jewett, 61 Vt. 501, 18 Atl. 47, 4 L. R. A. 561, 15 Am. St. Rep.

We have already to some extent noticed the remedies of the adult party where an infant repudiates his contract after having received the consideration. In such a case, he no longer has a right to hold the consideration; and, if he refuses to return it, he is, according to the better opinion, guilty of a tort, for which the other party may maintain an action.2

931; Johnson v. Pie, 1 Sid. 258; Slayton v. Barry, 175 Mass. 513, 56 N. E. 574, 49 L. R. A. 5G0, 78 Am. St. Rep. 510. He is not liable in trover. Slayton v. Barry, supra. See "Infants," Dec. Dig. (Key-No.) § 56; Cent. Dig. § 100.

97 Ferguson v. Bobo, 54 Miss. 121; Commander v. J3razil, 88 Miss. 60S, 41 South. 497, 9 L. R. A. (N. S.) 1117; County Board of Education v. Hensley, 147 Ky. 441, 144 S. W. 63, 42 L. R. A. (N. S.) 643 (in which it is said, per Miller, J.: "The rule is simply an application of the equitable doctrine that he who misleads another by his solemn assertion of a fact will not be allowed to assert the contrary to the prejudice of the person whom he has thus misled, and so perpetrate a fraud upon him"). International Land Co. v. Marshall, 22 Okl. 693, 98 Pac. 951, 19 L. R. A. (N. S.) 1056 (holding that an infant guilty of fraud may not have his deed canceled without offering to refund the consideration received). But "in order to raise estoppel out of the evidence against the minor, that evidence must plainly show, not doubtfully or vaguely, but clearly and convincingly, the presence of actual, active, and willful fraud and misrepresentation." Lake v. Perry, 95 Miss. 550, 49 South. 569, 574, per Whitfield, C. J. And see Grauman, Marx & Cline Co. v. Krienitz, 142 Wis. 556, 126 N. W. 50, where estoppel is said to be confined to cases where the infant is in fact developed to the condition of actual discretion, and to cases of actual fraud, and where the contract or transaction is beneficial. See "Infants," Dec. Dig. (Key-No.) § 56; Cent. Dig. § 100.

98 Baker v. Stone, 136 Mass. 405; Sewell v. Sewell, 92 Ky. 500, 18 S. W. 162, 36 Am. St. Rep. 606; Davidson v. Young, 38 I11. 145; Brantley v. Wolf, 60 Miss. 420; Price v. Jennings, 62 Ind. Ill; Thormaehlen v. Kaeppel, 86 Wis. 378, 56 N. W. 1089. See "Infants," Dec. Dig. (Key-No.) § 56; Cent. Dig.

§ 100.

99 International Text-Book Co. v. Doran, 80 Conn. 307, 68 Atl. 255; Charles v. Hastedt, 51 N. J. Eq. 171, 26 Atl. 564. See "Infants," Dec. Dig. (Key-No.) §§ 55, 56; Cent. Dig. §§ 100, 135.

1 Badger v. Phinney, 15 Mass. 359, 8 Am. Dec. 105; Neff v. Landis, 110 Pa. 204, 1 Atl. 177. See "Infants," Dec. Dig. (Key-No.) § 56; Cent. Dig. § 100.

2 Badger v. Phinney, 15 Mass. 359, 8 Am. Dec. 105; Mustard v. Wohlford's Heirs, 15 Grat. (Va.) 329, 76 Am. Dec 209; Vasse v. Smith, 6 Cranch, 226, 3

If the infant, while rightfully in possession of the consideration which he has received, has wasted or disposed of it during his minority, and he is allowed to disaffirm his contract, the other party is remediless,8 unless he can trace the property into the hands of those who obtained it from the infant.