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the action cannot alter the nature of the transaction," and that, “though the non-performance of that which is originally contract may be made the subject of an action of tort, the foundation of that action must still be in contract.” 1

But the weight of authority putting out of view any question regarding the proper form of action would seem to be with the New York cases.' The question whether an infant is liable in tort for falsely

representing himself to be of full age, whereby he [*110] induces *another to contract with him to his prejudice,

is one upon which great differences of judicial opinion have been expressed. In England it is thoroughly established that he is not liable. The English cases have often been approved in this country, and the tendency of authority here is with them. But other cases hold the contrary.


· Weall o. King, 12 East, 452. And, see, Studwell o. Shapter, 54 N. Y. 249. Compare Eaton o. Hill, 50 N H, 235, 240. In this last case it is held that case will lie against an infant for a positive wrongful act to property bailed to him, and that it is not necessary, as was held in Campbell 0. Stakes, to bring trespass. See, also, Schenk o. Strong, 4 N. J. 87.

2 See, besides the cases referred to in Maine and New Hampshire, Story on Sales, S 28; 1 Pars, on Cont, 316.

3 Johnson o. Pye, 1 Lev. 169; 1 Sid. 258, and 1 Keb. 905; Price o. Hewett, 8 Exch. 146; Liverpool, etc., Association v. Fairhurst, 9 Exch 422; Bart. lett o. Wells, 31 L. J. Q. B. 57; S. C. 1 B. & S. 836; Wright o. Leopard, 11 J. Scott (N. 8.), 258; De Roo o. Foster, Ib. 272, Where, by false representations, a minor has obtained a lease of furnished premises the lessor is entitled to have the lease declared void and possession given him, but defend. ant cannot be held for use and occu. pation. Lemprière o. Lange, L. R. 12 Ch. D. 675.

* Brown o. Dunham, 1 Root, 272; Geer o. Hovey, Ib. 179; Wilt o. Welsh,

6 Watts, 9; Curtin o. Patton, 11 S. & R. 309; Stoolfodzo. Jenkins, 12 S. & R. 403; Livingston o. Cox, 6 Penn. St. 360; Kean o Coleman, 39 Penn. St. 299; Brown o. McCune, 5 Sandf. (S.C.) 224, Homer ø. Thwing, 3 Pick. 492; Merriam o. Cunningham, 11 Cush. 40; Carpenter o. Carpenter, 45 Ind. 142; Burns o. Hill, 19 Geo. 22; Kilgore o. Jordan, 17 Texas, 341; Tucker 0. Moreland, 10 Pet. 59.

5 See Ward 0. Vance, 1 N. & Mc. Cord, 197; Peigne v. Sutliffe, 4 McCord, 387; Fitz o. Hall, 9 N. H. 441; Norris 0. Vance, 3 Rich. 164; Seabrook v. Gregg, 2 S. C. (N. s.) 79. In Fitz o. Hall, supra, PARKER, Ch. J., undertakes to lay down a general rule as follows: "The principle," he says, “seems to be that, if the tort or fraud of an infant arises from & breach of contract, although there may have been false representations or concealment respecting the subject matter of it, the infant cannot be charged for this breach of his promise or contract by a change in the form of action. But if the tort is subsequent to the contract, and not a mere breach of it, but a distinct, willful and positive

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*The protection against personal responsibility which [*111) the law accords to an infant does not go so far as to vest in him the title to property which he has obtained by fraud, or on a contract which he disaffirms. If he still retains the property when the contract is disaffirmed, he must restore it on demand, and on his failure to do so, the original owner may obtain

wrong in itself, then, although it may case as Fitz o. Hall forms an essential be connected with a contract, the in- part of the right of action, and no liatant is liable. The representation in bility growing out of contract can be Jobnson o. Pye, and in the present asserted against an infant. The test case, that the defendant was of full of an action against an infant is, age, was not part of the contract, nor whether a liability can be made out did it grow out of the contract, or in without taking notice of the conany way result from it. It is not any tract." But Mr. Parsons, who appart of its terms, nor was it the consid

proves the case, says the learned eration upon which the contract was editors mistook the real ground of the founded. No contract was made about decision in Fitz o. Hall, wbich was the defendant's age. The sale of the that a fraudulent representation, goods was not a consideration for whereby money or goods are obtained this affirmation or representation. by an infant, is an actionable injury. The representation was not a founda- 1 Pars. on Cont. 5th Ed. 318, note. tion for an action of assumpsit. The See Walker 0. Davis, 1 Gray, 506. matter arises purely ex delicto. The The case was approved by REDFIELD, fraud was intended to induce, and did Ch. J., in Towne 0. Wiley, 23 Vt. induce, the plaintiff to make a con. 859, but denied to be sound in Gibson tract for the sale of the lots, but that 0. Spear, 38 Vt. 311, 315, in which it by no means makes it part and parcel is said: “We think that the fair reof the contract. It was antecedent to sult of the American as well as of the the contract, and if an infant is liable English cases is that an infant is liafor a positive wrong connected with ble in an action ex delicto for an actual a contract, but arising after a contract and willful fraud only in cases in has been made, he may well be an. which the form of action does not swerable for one committed before suppose that a contract has existed; the contract was entered into, al but that where the gravamen of the though it may have led to the con- fraud consists in a transaction which tract."

really originated in contract, the plea This decision is pronounced by the of infancy is a good defense." The editors of the American Leading principle thus stated would exclude Cases, in their notes to Tucker 0. many cases in which it is admitted an Moreland, Vol. I., to be "clearly un. infant is liable. With deference it sound," and they say that “the repre- may be suggested whether, where a sentation, by itself, was not actionable, party has never intended to rely upon for it was not an injury, and the the contract of an infant, or to have avoidance of the contract, which any contract dealings at all with one, alone made it so, was the exercise of justice to him and "protection” 10 a perfect legal right on the part of the infant does not require that the the infant. The contract in such & fraud shall be dealt with in like man

it on replevin, or recover its value in an action of trover.' And where the property was obtained by fraud the infant has been held liable, though the conversion took place before the time when the price was payable by the terms of the fraudulent contract.' As the doctrine respondeat superior rests upon the relation of

master and servant, which depends upon contract, actual [*112] or *implied, it is obvious that it can have no application

in the case of an infant employer, and he, therefore, is not responsible for torts of negligence by those in his service. Nor can he be made a trespasser by relation through the ratification of a wrongful act which another has assumed to do on his behalf, but without his knowledge.

It seems that if an infant tortiously convert the money of another to his own use, or tortiously dispose of the property of another, receiving money therefor, the tort may be waived and assumpsit maintained. The reasons for this are well set forth in a Vermont case. ner as would any other distinct tort. 1 Mills 0. Graham, 1 New Rep. 140; ious act. In Eckstein 0. Frank, 1 Badger 0. Phinney, 15 Mass. 359: Daly, 331, Judge Daly denies the Walker o. Davis, 1 Gray, 506; Kilgore soundness of Johnson v. Pye, and 0. Johnson, 17 Texas, 341; Pars. on considers it overruled in New York Cont. 5th Ed. 319; Reeve Dom. Rel. by Wallace o. Morss, 5 Hill, 392. In 244; Schouler, Dom. Rel. 555. Indiana in a late case it is held that 2 Walker 0. Davis, 1 Gray, 506; an infant is liable in tort for the Schouler, Dom. Rel. 555-6. actual loss resulting from a false and 3 Robbins v. Mount, 4 Robt. 553; fraudulent representation of his age S. C. 33 How. Pr. 34. where by reason of it contract has 4 Burnham 0. Seaverns, 101 Mass, been made with him. “Thus an 360, See Armitage 0. Widoe, 36 equitable conclusion is reached and Mich. 124. Nor is he liable as innone in harmony with his liability in keeper upon the custom of the realm. tort.” Rice 0. Boyer, 108 Ind. 472. Cross 0, Andrews, Carth. 161; Cro. All the cases agree that, if an infant Eliz. 622. is sued on his contract, his fraud will 6 Bristow o. Eastman, 1 Esp. 172; not preclude bis relying upon his Shaw 0. Coffin, 58 Me. 254. See infancy in a defense in that suit. Peigne o. Sutcliffe, 4 McCord, 387; Burley o. Russell, 10 N. H. 184: Mer- Munger o. Hess, 28 Barb. 75. riam 0. Cunningham, 11 Cush. 40; 6 Elwell 0. Martin, 32 Vt, 217, Brown o. McCune, 5 Sandf. (S. C.) ALDIS. J.: “The defendant, a minor, 244; Studwell v. Shafter, 54 N. Y. 219. tortiously, and without the knowledge There are statutes in some States ren- or consent of the plaintiff, took from dering infants responsible for their him one hundred and ninety dollars false assertions of majority. See in money: is he liable therefor in asSchouler, Dom. Rel. 570; Ewell's sumpsit for money had and received: Lead. Cas. 205, 206.

It is admitted that if he were an adult

*It has been decided in Illinois, that if an infant (*113] makes a purchase for cash, and pretends to make payment

he would be so liable. Where prop- promise but only to pay a reasonable erty has been tortiously taken and price which is implied. converted into money, the plaintiff “As infancy does not protect him may sue in tort, or he may waive the from the consequences of and liabiltort and sue in assumpsit. When it ity for his tortious acts, why should is said that he waives the tort, it is it furnish him with defense against not meant that he does any act or them when sued ex contractu instead makes any averment in his declara- of ex delicto ? The right to elect the tion to that effect. He simply brings form of action belongs to the plain. assumpsit instead of trespass or trover, liff. The infant cannot be injured, and thereby foregoes the advantage but may be benefited by being sued he would have if he sued tortwise to in assumpsit. Why may not an inclaim bigher or exemplary damages, fant be allowed to have a milder and to proceed against the person of remedy brought against him as well the defendant. By bringing assump

as adult tort feasors? sit he pursues a remedy milder and The promise upon which he is more favorable to the defendant. made liable is not an express one. The defendant cannot be worse and The law implies it from the wrongful may be better off by being sued ex act. It is not a contract in which he contractu. Such is the law as applic- may have been cheated, and against able to adults.

which infancy shields him, but a will. “It is also admitted that the de- ful wrong which he has committed fendant is liable for the tort, and that against another, and in which the the damages recoverable in an action law implies the obligation to make ex delicto cannot be less than the the restitution. Here the necessity is money tortiously taken, which would to protect, not the infant, but society. be the measure of damages in assump- The plea should cease when the reasit. But it is claimed that although son for it ceases. Although the action infancy is no bar to the cause of ac- is assumpsit, yet the substance is in tion io tort, although the infant is tort, and when the substance has been fully liable for the tort, still if the made to appear by proof, we see no plaintiff elects to sue in assumpsit, reason why the form of action which then the infant, on account of the is favorable to the infant may not be form of action, can plead his infancy maintained. In the substance of the in bar of the suit.

proceedings there is no anomaly and "The plea of infancy is allowed to none as to the form which is not fully protect the infant from imposition, to answered by allowing such suits to shield him against the consequences stand against adults. of his inexperience and ignorance. The action, we think, is fully sus. Hence, his express promises do not tained by authority. Bristow o. Eastbind him. Even for necessaries, man, reported in 1 Esp. 172, and in which he must have, or otherwise he Peake, 223, is an authority to show would starve, he is not liable by vir. that an infant who has embezzled tue of any express promise; for if he money may be sued for it in assumppromise to pay an unreasonable price sit. for them, he is not bound by such “As reported in Espinasse, it is a

[*114 ] by delivery of a *check on a bank where he has no funds,


direct decision on the point. In language of Ch. J. Tindall, in the Peake it is said that the plaintiff case last cited, shows upon what proved that the defendant acknowl. grounds and why a party may waive edged the fraud and promised to pay the tort, and the reasons assigned after he came of age, so that the point show that it may as well be waived was not determined. In this view it in the case of an infant as of an adult. is but the doctrine of Lord Kenyon. He speaks of it as a general rule, that We notice, however, that the case is .'no party is bound to sue in tort, more fully reported in Espinasse, and where, by converting the action into seems to bear upon its face the marks an action of contract, he does not preof greater accuracy and a judice the defendant, and, generally thorough knowledge of the case. speaking, it is more favorable to the

“The doctrine there held by Lord defendant to be sued in contract.' Kenyon, that an infant is liable in “In the same case, Bosanquet and assumpsit for money he has embez- Alderson, Judges, say that by wais. zled, has been recognized and adopted ing the tort the plaintiff does not af. by several elementary writers on the firm the wrongful acts of the defensubject of infancy; by Judge Reeve, dant, but merely waives his claim to in his Domestic Relations, 246: by damages for the wrong, and is conProf. Greenleaf, 2 Greenleaf's Ev. tent to sue for the proceeds of the Sec. 368, and by Story on Contracts, wrongful act. p. 64. It is questioned upon what

“Our attention has been called to seems to us insufficient ground in an the principle generally recogoized article in the American Jurist, Janu. and established in this State in West ary, 1839. See, also, Bing. on In- 0. Moore, 14 Vt. 449, that where the fancy, p. 111, and 1 Am. Leading liability really arises by breach of a Cases, 261.

contract, though accompanied by “ The defendant has cited several fraud or tort, the plaintiff shall not cases to show that to sue in assumpsit be allowed to change the form of the plaintiff must waive the tort, and action and hold the infant liable that then the case must proceed as if delicto for the tort. The reason of the the money was received without decisions stands upon the plain wrong, and the defendant only liable ground of protecting the infant for a breach of contract. Such is, un- against his liabilities really arising questionably, the theory of the law, upon contract. In tort the infant and the principle is recognized in the might be liable for greater damages cases cited. Conant 0. Raymond, 2 than upon contract, and when the Aik., 243; Fisher o. Jail Commission- substantive cause of action is upon ers, 3 Vt. 328; Young o. Marshall & a contract, he ought not to be liable Poland, 21 E. C. L. 437 (8 Bing. 43.) at all. The cases under this head are “But this does not settle the ques.

Sometimes it is difficult tion bere at issue, whether an infant to tell which most preponderates, the tortiously taking money can plead contract or the tort, and the rule infancy in bar when sued in assump- which has been sometimes applied as sit, for the validity of a plea as a de- & tort, that the conversion must be fense may, and ordinarily should willful, and not constructive by turn, not upon the form of the action, breach of the contract, seems just in but its substantial merit. Indeed, the theory, though very difficult in prace


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