This section is from the book "The Law Of Contracts", by William Herbert Page. Also available from Amazon: Commercial Contracts: A Practical Guide to Deals, Contracts, Agreements and Promises.
10 Clark v. Tate, 7 Mont. 171; 14 Pac. 761; Griffis v. Younger, 41 N. C. 520; 51 Am. Dec. 438.
11 Vogelsang v. Null, 67 Tex. 465; 3 S. W. 451.
12 Shroyer v. Pittinger, 31 Ind. App. 158; 67 N. E. 475.
13 St. Louis, etc., Ry. v. Higgins, 44 Ark. 293; overruling Bozeman v. Browning, 31 Ark. 364; Chandler v. Simmons, 97 Mass. 508; 93 Am. Dec. 117; not following Bartlett v. Cowles, 15 Gray (Mass.) 445; Craig v. Van Bebber, 100 Mo. 584; 18 Am. St. Rep. 569; 13 S. W. 906; limiting Kerr v. Bell, 44 Mo. 120; Highley v. Barron, 49 Mo. 103; Baker v. Ken-nett, 54 Mo. 82, in which it had been said, without making any exception, that an infant must restore the consideration on disaffirmance; Bullock v. Sprowls, 93 Tex. 188; 77 Am. St. Rep. 849; 47 L. R. A. 326; 54 S. W. 661; limiting the general language used in Cummings v. Powell, 8 Tex. 93; Womack v. Wora-ack, 8 Tex. 397; 58 Am. Dec. 119; Kilgore v. Jordan, 17 Tex. 341; Stuart v. Baker, 17 Tex. 417; Bingham v. Barley, 55 Tex. 281; 40 Am. Rep. 801; Graves v. Hickman, 59 Tex. 383; Harris v. Musgrove, 59 Tex. 403;, Vogelsang v. Null, 67 Tex. 465; 3 S. W. 451; Wade v. Love, 69 Tex. 522; 7 S. W. 225; Ferguson v. Ry., 73 Tex. 344; 11 S. W. 347; Houston, etc., Ry. v. Ferguson, 73 Tex. 349; 13 S. W. 57; Whitcomb v. Joslyn. 51 Vt. 79; 31 Am. Rep. 678; modifying the views expressed in Farr v. Sumner, 12 Vt. 28; 36 Am. Dec. 327; Taft v. Pike, 14 Vt. 405; 39 Am. Dec. 228.
14 Featherstone v. Betlejewski, 75 111. App. 59; Bedinger v. Wharton, 27 Gratt. (Va.) 857. In Bullock v. Sprowls, 93 Tex. 188; 77 Am. St. Rep. 849; 47 L. R. A. 326; 54 S. W. 661, the court allowed a writ of error, on the authority of Searcy v. Hunter, 81 Tex. 644; 26 Am. St. Rep. 837; 17 S. W. 372; it being stated by the court of civil appeals that part of the consideration was used to buy supplies and clothing, and the court at the outset being under the impression that he should account for the value of such necesthe consideration received by him for necessaries which he has consumed or for property which he still has, that he should account for the reasonable value of the necessaries, or return the property thus acquired by him. In some cases this view has been enforced.15 Thus where money borrowed was spent in paying off valid liens and making valuable improvements on the infant's realty, the infant was obliged to account therefor.16 In some states it has been held that unless the identical money is under the control of the minor he need not return it;17 and property for which the consideration has been exchanged need not be returned as a condition of rescission.18 Where the purchase money for an infant's realty was paid to her husband, and with it he bought other land in which she had a dower interest, she was not required to repay the purchase money in order to disaffirm ;19 and a similar view was taken where an infant sold land, and the price was paid to his father who invested the proceeds in a piano for the infant.20 Where an infant bought goods on credit, intermingled them with his own goods so as to be indistinguishable, and transferred the entire saries; but this point was not decided, as it was not raised by the record.
15 If the consideration received consisted in part of necessaries the infant must account for such necessaries. Stull v. Harris, 51 Ark. 294; 2 L. R. A. 741; 11 S. W. 104.
16 United States Investment Corporation v. Ulrickson, 84 Minn. 14; 87 Am. St. Rep. 326; 86 N. W. 613. ". . . To say that the consideration paid to Mrs. M. for the deed of trust of 1889 is not in her hands, when the money has been put into her property in conformity with the disaffirmed contract, and notwithstanding such property, is still held and enjoyed by her, is to sacrifice substance to form, and to make the privilege of infancy a sword to be used to the injury of others, although the law intends it simply as a shield to protect the infant from injustice and wrong." McGreal v. Taylor, 167 U. S. 688, 701.
17 Hawes v. Burlington, etc., Ry. Co., 64 Ia. 315; 20 N. W. 717; citing and following Jenkins v. Jenkins, 12 Ia. 194.
18 Leaeox v. Griffith, 76 Ia. 89; 40 X. W. 109; Englebert v. Troxell, 40 Neb. 195; 42 Am. St. Rep. 665; 26 L. R. A. 177; 58 N. W. 852; Walsh v. Powers, 43 N. Y. 23; 3 Am. Rep. 654.
19 Richardson v. Pate, 93 Ind. 423; 47 Am. Rep. 374.
20 Englebert v. Troxell, 40 Neb. 195; 42 Am. St. Rep. 665; 26 L. R. A. 177; 58 X. W. 852. The cases last cited really limit the question to whether the return of the property thus acquired was a condition precedent to disaffirmance.
Local statutes in some states modify the Common Law rules. In Iowa a minor must restore "all money or property received by him by virtue of the contract and remaining within his control at any time after he has attained his majority."24 In California a minor must return the property received by him in consideration of the conveyance "or its equivalent," by force of which statute he must return the equivalent of what he has wasted.25 In Indiana an infant may disaffirm a sale of realty without returning the price unless he has falsely represented himself an adult.26 Since a mortgage is a conveyance an infant feme covert cannot disaffirm a mortgage in which her husband, who is of full age, has joined, without returning the consideration.27 If two infants contract with each other, the one who seeks to disaffirm the contract is not liable for what he has spent before disaffirmance.28
21 Evans v. Morgan, 69 Miss. 328; 12 So. 270; and to substantially the same effect is Sanger v. Hibbard, 2 Ind. Ter. 547; 53 S. W. 330.
22 Towell v. Pence, 47 Ind. 304; Miles v. Lingeman, 24 Ind. 385; Pitcher v. Laycock, 7 Ind. 398.
23 Dill v. Bowen, 54 Ind. 204. "Having disaffirmed the contract, the law imposes on her no legal obligation to repay the purchase money. ... If an infant disaffirm a contract after coming of age he must do it in toto ; that is to say, if he has property in his hands acquired by the contract the other party may reclaim it. But if the property has passed from his hands or if he has received money, the law imposes no obligation upon him to account for the property or repay the money upon his disaffirmance of the contract. It is not necessary that the other party should be placed in statu quo." Dill v. Bowen, 54 Ind. 204, 208.
24 Statute quoted in Stout v. Merrill, 35 Ia. 47; and- see Hawes v. Burlington Ry. Co., 64 Ia. 315; 20 N. W. 717; Leacox v. Griffith, 76 Ia. 89; 40 N. W. 109.
25 Whyte v. Rosencrantz, 123 Cal. 634; 69 Am. St. Rep. 90; 56 Pac. 436.
26 Gillenwater v. Campbell, 142 Ind. 529; 41 N. E. 1041.
27 United States, etc., Co. v. Harris, 142 Ind. 226; 40 N. E. 1072; 41 N. E. 451.