Armitage v. Widoe

Cooley, Ch. J:

This action is brought to recover back four hundred dollars paid in the plaintiff’s name on a contract for the purchase of lands. The contract was entered into April 24, 1875, and purports to be between Jesse C. Widoe as vendor and Henry Armitage as vendee. The purchase price was thirteen thousand dollars, of which three thousand dollars was payable on or before May 10, 1875, and the balance in ten annual installments of one thousand dollars each, with annual interest. Henry Armitage was about seventeen years of age at the date of .the contract, and his name was signed to it by William H. Armitage, his father. The plaintiff, by his own evidence showed that he was ignorant of the contract at the time it was made, and never saw it until after this suit was brought; that he had no money to pay upon it and did pay none; and that his father told him what had been paid on the contract was to be recovered back in his, the son’s, name. The father was sworn as a witness, and testified that he made the contract and paid the money for his son, and that the son afterwards, on being informed of it, assented to what had been done. There is some complaint of refusal or unwillingness on the part of *128 the defendant to perform the contract on his part, and on the contrary he relies upon it as a valid contract, and offers to perform, but the suit appears to be grounded upon the right of an infant to disaffirm his contract and recover back what has been paid upon it.

1. Obviously the first question in the case 'is, how this infant, who had nothing to do with the making of this contract in the first place, has become entitled to any benefit under or because of it. If he has any right at all, it would seem that he must have acquired it in one of three ways; no other being conceivable. These are—

1. By virtue of the contract itself, made in his name, and which, though made without his knowledge, purported to assure to him rights which we may suppose were of value;

2. By the adoption of the act of his father in making the contract;

3. By accepting the contract as a gift from his father.

It is not claimed, as we understand it, that by the contract itself, independent of any action afterwards taken, the infant would have had any rights at all. No contract is binding upon any party until he assents to it. Even a deed must be delivered and accepted; and much more must a contract be which contains onerous conditions, and assumes to bind the party to the payment of a large sum of money. Any suggestion therefore, that the contract as made entitled the infant to any rights, may be dismissed from consideration. If when made it was a valid contract in favor of any one as vendee, it must have been in favor of the father, who, having made it in the name of another person without authority, might possibly have been compelled to perform it as his own contract, and been entitled to the benefit of it as hjs own. What rights there may have been by or against him, we need not consider, as they are not involved in this litigation.

II. If the contract became that of the infant through the adoption of the act of his father in making it, it must be because the infant has thus retrospectively made the *129 father his agent. This, and this only, must he the force of the adoption; it is giving authority retrospectively, by claiming as his own that which without authority at the time was done in his name.

Had the infant in the first place "undertaken to make another his agent to enter into the contract for him, the appointment would not have been valid. On the authorities no rule is clearer than that an infant cannot empower an agent or attorney to act for him.—Whitney v . Dutch, 14 Mass., 457, 460 ; Lawrence’s Lessee v. McArter, 10 Ohio, 37; Fonda v. Van Horne, 15 Wend., 631, 635 ; Trueblood v. Trueblood, 8 Ind., 195 ; Cole v. Pennoyer, 14 Ill., 158 ; Knox v. Flack, 22 Penn. St., 337; Sadler v. Robinson, 2 Stew. (Ala.), 520; Robbins v. Mount, 4 Robt., N. Y., 553. But if he cannot appoint an agent or attorney, it is clear he cannot affirm what one has assumed to do in his name as such. He cannot affirm what he could not authorize. —Doe v. Roberts, 16 M. & W., 778, 781; Fonda v. Van Horne, 15 Wend., 631, 636 ; Trueblood v. Trueblood, supra. It would be extraordinary if a party who has no power to do a particular act could yet do it indirectly by the mere act of adoption. Such a doctrine would deprive the infant wholly of his protection; for one has only to change the order of proceeding, assume to act for the infant first and get his authority afterwards, and the principle of law which denies him the power to give the authority is subverted. But such a doctrine is wholly inadmissible. The protection of infancy is a substantial one, and is not to be put aside and overcome by indirect methods.

III. Did the infant become entitled to the contract by the gift of his father? That he did, might perhaps be claimed with some degree of plausibility had the payment made on the contract been the whole or the principal part of the purchase price. But- the payment was in fact insignificant when compared with what remained to be paid. If the infant took the contract, he took it with all its conditions, one of which was the payment of the sum of twelve *130 thousand six hundred dollars in the manner provided for therein. Now there can be no presumption whatever that such a gift was for the benefit of the infant, — and even if he were an adult, acceptance could not be presumed without some express evidence to establish it. In this case, instead of there being evidence that the infant accepts the contract, the suit itself assumes that he rejects it.

But treating the act of the father as a gift to his son, how does this entitle the son to demand and receive back the four hundred dollars paid on the contract? This sum never belonged to the son, and there is no pretense that it was ever given to him. The gift was of a right under the contract acquired by means of the payment of this sum. This right is offered to the son, and according to the testimony of the father, he at first accepts it, but then turns around and says in effect: “No, I will not take this right, but I will demand and have what was paid for it.” If he may do this, then what he obtained from his father was not the contract itself, but the right to repudiate the contract. But the right to repudiate a contract is not the subject of gift at all. Besides the father never had it to give. If the contract was valid in his hands, he could not repudiate it, and he mild not empower another to do what he could not do himself.

In what has thus far been said, we have not touched upon the authority of the infant to disaffirm a contract of purchase before coming of age. If the contract had become his in any way, it would be, we take it, only a voidable contract, and in Dunton v. Brown, 31 Mich., 182 , the right to disaffirm a voidable contract during infancy was denied. But it is enough in this case to show that the infant never became entitled either to the contract or to the moneys paid under it.

The judgment must be affirmed, with costs.

The other Justices concurred.