72 Insterstate Coal Co. v. Trivett, 155 Ky. 825, 160 S. W. 728; Barr v. Packard Motor Car Co., 172 Mich. 299, 137 N. W. 697; Britton v. South Penn. Oil Co., 73 W. Va. 792, 81 S. E. 525 In Gonackey v. General Accident Fire ft Life Assur. Corp., 6 Ga. App. 381, 65 S. E. 53, the court allowed an infant who had received Sec.50 in full settlement of a policy for Sec.300, and without any liability for what was given him in exchange. The hardship of such a situation upon the adult has produced a number of decisions and some statutes providing that the infant cannot disaffirm a transaction executed on both Bides unless he can and does put the other party in statu quo.73 It has with more reason been held by courts of equity that equitable relief will not be given to an infant unless he himself does equity by restoring what he has received.74 But if the infant has used, lost, who had spent the $50, to disaffirm the settlement and recover the full face of the policy not only without tendering the $60, but without any deduction from the amount recovered. In Benson v. Tucker, 212 Mass. 60, 98 N. E. 589, 41 L. R. A. (N. S.) 1219, however, on infant speculator recovered from his stockbroker the amount of his original margin subject to deduction of sums paid, from time to time. The amount recovered, however, was all that the plaintiff claimed. Cf. Raymond v. General Motorcycle Co., 230 Mass. 54, 119 N. E. 359. For the effect of the infancy of both parties, see Drude v. Curtis, 183 Mass. 317, 67 N. B. 317, 62 L. R. A. 765.
73 See Holmes v. Blogg, 8 Taunt. 35, 608; Be Taylor, 8 De G. M. A G. 254; Boxeman v. Browning, 31 Ark. 364 (overruled by St. Louis, etc., Ry. v. Higgins, 44 Ark. 293); Coburo v. Raymond, 76 Conn. 484, 492, 57 Atl. 116, 100 Am. St. Rep. 1000; Keokuk State Bank v. Hall, 106 Ia. 540, 76 N. W. 832; Bailey v. Bamberger, 11 B. Mon. 113; Johnson v. Insurance Co., 56 Minn. 366, 57 N. W. 934, 59 N. W. 992, 26 L. R. A. 187, 46 Am. St. Rep. 473; Braucht v. Graves-May Co., 92 Minn. 116, 99 N. W. 417; Kerr v. Bell, 44 Mo. 120; Stanhope v. Shambow, 54 Mont. 360, 170 Pac. 752; Bartlett v. Bailey, 59 N. H. 408; Hall v. Butter-field, 89 N. H. 364, 47 Am. Rep. 209; Evans P. Taylor, 18 N. Mex. 371, 137 Pac. 583, 50 L. R. A. (N. S.) 1113; Rice v. Butler, 160 N. Y. 578, 55 N. E.
276, 47 L. R. A. 303, 73 Am. St. Rep. 703; Mutual Milk Co. v. Prigge, 112 N. Y. App. Div. 652, 98 N. Y. S. 458; Wanisch v. Wuertz, 79 N. Y. Misc. 610; 140 N. Y. S. 573; Lown v. Spoon, 168 N. Y. App. Div. 900, 143 N. Y. S. 275; Lefler v. Oelrichs, 173 N. Y. App. D. 759, 763, 160 N. Y. S. 119; Smith p. Evans, 5 Humph. 70; Lane v. Dayton, etc, Co., 101 Tenn. 581, 48 S. W. 1094; Stuart v. Baker, 17 Tex. 417; Folts v. Ferguson, 77 Tex. 301, 13 S. W. 1037; Bedinger v. Wharton, 27 Gratt. 857. In South Dakota this rule prevails by statute, but a contract from which the infant con derive no advantage, as one of suretyship, may be rescinded without restoring the original status. Holland v. Colton State Bank, 20 S. Dak. 326,106 N. W. 60. In England an infant who has used or consumed goods for which he has paid money under a contract void under the Infants' Relief Act, 1874, Sec. 1, cannot recover back from the vendor the money so paid. Valentini v. Canali, 24 Q. B. D. 166.
74ureka Co. v. Edwards, 71 Ala. 248, 46 Am. Rep. 314; Bell v. Burk-halter, 176 Ala. 62, 57 So. 460; Beau-champ d. Bertig, 90 Ark. 351, 119 S. W. 75, 23 L. R. A. (N. S.) 659; Bryant v. Pottinger, 6 Bush, 473; Hill-yer v. Bennett, 3 Edw. Ch. 222; Smith n. Evans, 5 Humph. 70; Folts v. Ferguson, 77 Tex. 301, 13 S. W. 1037; Bedinger v. Wharton, 27 Gratt. 857; Wallace v. Leroy, 57 W. Va. 203, 267, 50 S. E. 243, 110 Am. St. Rep. 777. But or destroyed what be received, in many jurisdictions even equitable relief will not be denied because of the infant's failure to restore the consideration or its value.75
It must be admitted that the prevailing rule allowing an infant to rescind an executed transaction without restoring what he has received may often work gross injustice. A few instances of this are suggested in a Minnesota case. "Suppose a minor engaged in agriculture should hire a man to work on his farm, and pay him reasonable wages for his services. According to this rule the minor might recover back what he paid, although retaining and enjoying the fruits of the other's man's labor. Or, again, suppose a man engaged in mercantile business with a capital of $5,000 should, from time to time, buy and pay for $100,000 worth of goods, in the aggregate, which he had sold, and had got his pay. According to this doctrine, he could recover back the $100,000 which he had paid to the various parties from whom he had bought the goods." 76 The injustice of such results so far as the adult is concerned is not diminished by the fact that the infant has previously wasted the consideration which he received from the adult.
In Minnesota and New Hampshire the ordinary rule prevailing in regard to necessaries has been extended bo far as to hold an infant bound by his contracts, where he fails to restore what he has received under them, to the extent of the benefit actually derived by him from what he has received from the other party to the transaction.77 This seems to see Millsape v. Botes, 137 N. C. 635, 546, 60 S. E. 227, 70 L. R. A. 170, 107 Am. St. Rep. 476.
75Bell v. Burkhalter, 176 Ala. 62, 57 So. 460; Stull v. Harris, 51 Ark. 294, 11S. W. 104, 2 L. R. A. 741; Reynolds v. McCurry, 100 111. 356; Barr v. Packard Motor Car Co., 172 Mich. 299, 137 N. W. 697; Brantley v. Wolf, 60 Miss. 420; Bedinger v. Wharton, 27 Gratt. 857. In Millsaps v. Bates, 137 N. C. 535,546,50S. E. 227,70 L. R. A. 170, 107 Am. St. Rep. 476, the statement is made that equity will grant relief to the infant and then the other party "will be permitted to recover" what he has parted with if the infant still retains it or its proceeds.
76 Mitchell, J. in Johnson v. Northwestern Mut. Life Ins. Co., 56 Minn. 365, 373, 57 N. W. 934, 26 L. R. A. 187, 46 Am. St. Rep. 473.
77 Berglaod v. Multigraph Sales Co., 135 Minn. 67, 160 N. W. 191; Hall v. Butterfield, 59 N. H. 354; Bartlett v. Bailey, 59 N. H. 408; Stack v. Cavan-augh, 67 N. H. 149, 153, 30 Atl. 350; Wooldridge v. Lavoie (N. H.), 104 Atl. 346.
offer a flexible rule which will prevent imposition upon the infant and also tend to prevent the infant from imposing to any serious degree upon others.