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stock.

recording a transfer of

stock of the stock at the time of conversion, amount to a conversion of the stock. but on the trial, the parties having

The transfer being voidable only, waived the right to a trial by jury, and legal and valid when made, the she tendered back the note, escorporation had no right to refuse a tablished her inability to return the transfer. Smith v. Nashville & D. cash received, and asked and obR. Co. 91 Tenn. 221, 239, 18 S. W. tained judgment for the difference 546. It could have been compelled between the net amount realized on by the purchaser by recourse to the the sale of the stock and the amount

proper remedy to paid to her by Kastel. Corporationduty to transfer make it. Travis v. The form of the complaint is

Knox Terpezone Co. proper. It was not necessary to 215 N. Y. 259, 264, L.R.A.1916A, plead the evidence of a conversion. 542, 109 N. E. 250, Ann. Cas. 1917A, The voidable deed of an incompetent 387.

person may be avoided in an action It follows that the judgment of ejectment without resorting to should be reversed as to the United equity, the complaint simply stating States Steel Corporation and af- that the plaintiff was the owner in firmed as to the individual defend- fee and entitled to the possession of ants, unless as to them plaintiff pro- the real estate therein described, and ceeded erroneously in suing for a that the defendant unlawfully withconversion based on a rescission held possession thereof. Smith v. without previously giving notice of Ryan, supra, 459 (84 N. E. 402). disaffirmance. It is urged on their The beginning of replevin has also behalf that, as no tort was commit- been held to be a sufficient act of reted until disaffirmance, no action scission (Wise v. Grant, 140 N. Y. should lie without a prior disaffirm- 593, 596, 35 N. E. 1078), but the ance (Gould v. Cayuga County Nat. general rule is that in law, in an acBank, 86 N. Y. 75, 82; Smith v. Ry- tion based on the prior rescission of an, 191 N. Y. 452, 456, 19 L.R.A. a voidable contract,

Trover-neces(N.S.) 461, 123 Am. St. Rep. 609, a tender before suit sity to tender 84 N. E. 402, 14 Ann. Cas. 505),

is necessary,

al- before suit. and that the action itself cannot be though in equity, where the relief made an essential element of the sought is rescission, it is sufficient to cause of action without introducing offer restoration in the complaint an anomaly which is fundamental (Smith v. Ryan, supra, 456). The and more procedural in its charac- cause of action here is at law, the ter.

legal remedy is adequate, and an acThe right of an infant to avoid or

tion to declare a rescission would not rescind contracts made during his

lie. Schank v. Schuchman, 212 N. minority does not depend on his Y. 352, 357, 106 N. E. 127.

ability to restore the But the plaintiff should not be disInfant-duty to consideration or

missed. “The law does not require an sideration.

otherwise make res- idle ceremony." Gould v. Cayuga titution to the other party (Green County Nat. Bank, supra, p. 81. v. Green, 69 N. Y. 553, 25 Am. Rep. Tender of benefits was excused. The 233), but, to the extent that he still

money she had spent. Kastel's note has the consideration, the other par- was worthless. In any event he alone ty becomes entitled thereto. The could insist on its return as a condiplaintiff had received from Kastel tion of disaffirmance (Stevens v. $4,500 in cash, which she has spent, Austin, 1 Met. 557, cited with apand she holds his worthless note for proval in Gould v. Cayuga County $12,500, on which he is credited with Nat. Bank, supra), and he does not $2,000. She demanded judgment in complain. Notice of rescission her complaint for the market value where there is nothing to tender

restore con

(237 N. Y. 305, 142 N. E. 671.) back may well be dispensed with The judgment should be reversed

where tender of as to defendant United States Steel -necessity of

benefits notice when

received Corporation, and complaint disnothing to might otherwise be missed, with costs in all courts, and insisted

upon. otherwise affirmed, with costs. Plaintiff had received nothing from Johnson & Wood. No substantial Hiscock, Ch. J., and Cardozo, Mcright would have been conserved by Laughlin, Crane, and Andrews, JJ., a prior disaffirmance of the transfer concur. as to them.

tender.

ANNOTATION.

Infant's appointment of agent, and acts of agent thereunder, as void or

voidable.

I. Introduction, 1001. II. In general: a. Doctrine that appointment is

merely voidable, 1002. b. Doctrine that appointment is

void, 1005.
III. Illustrations and applications:

a. In general:
1. Appointment voidable only,

1007.
2. Appointment void, 1009.
b. Ratification by infant:

III. bcontinued.

1. Doctrine that infant may

ratify, 1011. 2. Doctrine that infant cannot

ratify, 1014. c. Beneficial or harmful nature of

appointment and acts of agent;

necessaries, 1015. d. Warrant of attorney to confess

or acknowledge satisfaction of

judgment, 1017. IV. Statutes, 1019. V. Miscellaneous, 1019.

1. Introduction. The authorities are in conflict on the present question. Many of the cases, however, which have been cited in support of the doctrine that an infant's appointment of an agent, and acts of the agent thereunder, are absolutely void and are not merely voidable, cannot be considered direct authorities on the proposition, but support it only by dictum. An attempt has been made in the annotation to indicate these obiter statements, in order to discover the true rule as disclosed by the authorities. Taking the actual conclusions reached, there remains a conflict of opinion, but the weight of authority--at least, the more recent and apparently betterconsidered cases-places an infant's appointment of an agent, and acts of the agent thereunder, in the same class as the other acts of an infant, and considers them merely voidable, and not absolutely void. It is said in 14 R.C.L. $ 10, that "the modern doctrine is to the effect that, except as to a narrowly limited class of contracts

which are valid and binding upon him, an infant's contracts are voidable, but not void."

In some cases, as will be observed, even though the courts have held the appointment void, they have done so merely because they considered themselves bound by the decisions to this effect, and regarded the contrary as a more reasonable rule. It should be observed that those cases which hold that an infant's appointment of an agent and the acts of the latter thereunder are void do not give any satisfactory reason for this rule. The doctrine seems to have originated in several of the early English cases, which have been followed without apparently due consideration of the grounds for the decision. In fact, no really substantial ground appears to be advanced in any of the cases for making a distinction in this respect between an infant's appointment of an agent and other contracts and acts of an infant which are merely voidable. It is suggested in some of the cases that an infant's ap

in

pointment of an agent comes within to whether a judgment rendered on those acts which are necessarily appearance of an infant by attorney prejudicial to an infant. But why only is void or voidable. In general, this is so is not obvious. It seems it may be said that the annotation clear that the infant is better pro- does not include cases on the right tected, and his rights more fully safe- of an infant to employ an attorney guarded, if the appointment and acts to prosecute or defend an action, of the agent are held merely voidable although it does include cases of an by him, than if they are regarded as appointment of an attorney to confess absolutely void, so that the other judgment, since these appear to stand party to the contract is not bound more on the footing of an ordinary apthereby and it is of no effect as re- pointment of an agent. gards strangers.

Although some of the decisions inAs regards differences in the volving the question whether an infinal result between the holding fant may appoint an agent, so as to that the appointment is absolutely render himself liable for the latter's void and the holding that it is torts, discuss the general question of merely voidable, it should be noted the authority of an infant to create an that, if the appointment of an agent agency or delegate power to anby an infant is void and not merely other, these cases belong to a somevoidable, it is an absolute nullity, what distinct class, and as such are and may be attacked by strangers, not covered the annotation. and that, no matter how beneficial it Among possibly other cases involvmay prove to be to the infant, he can- ing the question of the responsibility not ratify it after he becomes of age; of an infant for the torts of his servalso that if the appointment of the ant or agent, are Burns v. Smith agent and acts of the latter are abso- (1902) 29 Ind. App. 181, 94 Am. St. lutely void, no disaffirmance on the Rep. 268, 64 N. E. 94; Cunningham v. part of the infant is required after he Illinois C. R. Co. (1875) 77 III. 178; becomes of age.

In Cummings v. Sikes v. Johnson (1820) 16 Mass. 389; Powell (1852) 8 Tex. 80, the court, in Burnham v. Seaverns (1869) 101 considering whether a deed executed Mass. 360, 100 Am. Dec. 123; Robby an infant was void or voidable, bins v. Mount (1867) 4 Robt. (N. Y.) said: “A void act, as defined in the 553, 33 How. Pr. 24; Smith v. Kron latter cases and by approved author- (1887) 96 N. C. 392, 2 S. E. 533; Coities, is one which is entirely null, vault v. Nevitt (1914) 157 Wis. 113, 51 not binding on either party, and not L.R.A.(N.S.) 1092, 146 N. W. 1115, susceptible of ratification; and Ann. Cas. 1916A, 959. voidable act is one which is obliga

II. In general. tory upon others until disaffirmed by the party with whom it originated, a. Doctrine that appointment is merely and which may be subsequently rati

voidable. fied or confirmed."

As already indicated, the better And it was said in Cummings v. view appears to be that an infant's Powell (Tex.) supra, that the tend- appointment of an agent or attorney, ency of the decisions, for a century and acts of the latter, are not absoat least, has been for the extension lutely void, but are merely voidable, of the rule that the acts of infants there being no distinction in this reshall be deemed voidable only, and gard between such an appointment subject to their election either to and other acts or contracts of an inaffirm or disallow them.

fant. The following cases support Cases on the question of the neces- the doctrine that an infant's appointsity of an appearance in court of an ment of an agent or attorney and the infant by a guardian or next friend, acts of the latter are voidable only: rather than by an attorney merely, California. Hastings v. Dollarare not included in the annotation. hide (1864) 24 Cal. 195. And the question also is excluded as Maine.-Hardy v. Waters (1853)

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38 Me. 450; Towle v. Dresser (1882) 73 Me. 252 (where not prejudicial).

Maryland. - Hall v. Jones (1864) 21 Md. 439. But see Wainwright v. Wilkinson (1884) 62 Md. 146 (holding appointment of attorney void).

Massachusetts.-Whitney v. Dutch (1817) 14 Mass. 457, 7 Am. Dec. 229; Simpson v. Prudential Ins. Co. (1903) 184 Mass. 348, 63 L.R.A. 741, 100 Am. St. Rep. 560, 68 N. E. 673; Benson v. Tucker (1912) 212 Mass. 60, 41 L.R.A. (N.S.) 1219, 98 N. E. 589. See also Stiff v. Keith (1887) 143 Mass. 224, 9 N. E. 577.

Minnesota.—Coursolle V. Weyerhauser (1897) 69 Minn. 328, 72 N. W. 697.

Mississippi. See Alsworth V. Cordtz (1856) 31 Miss. 32 (rule not discussed, but is apparently supported by holding).

Missouri,- See Ward v. The Little Red (1844) 8 Mo. 358 (rule not discussed, but apparently supported holding).

New Jersey.-Patterson v. Lippincott (1885) 47 N. J. L. 457, 54 Am. Rep. 178, 1 Atl. 506.

New York.-CASEY V. KASTEL (reported herewith) ante, 995.

South Carolina.-Belton v. Briggs (1814) 4 S. C. Eq. (4 Desauss.) 465; Alexander v. Heriot (1831) 8 S. C. Eq. (Bail.) 223; Miller v. Sims (1834) 20 S. C. L. (2 Hill) 479 (partnership); Scott v. Scott (1888) 29 S. C. 414, 7 S. E. 811. See also Cheshire v. Barrett (1827) 15 S. C. L. (4 M'Cord) 244, 17 Am. Dec. 735 (obiter).

Texas. Cummings Powell (1852) 8 Tex. 80 (obiter); Vogelsang v. Null (1887) 67 Tex. 465, 3 S. W. 451 (obiter; holding that agent's authority may be disaffirmed). See also Ferguson v. Houston E. & W. T. R. Co. (1889) 73 Tex. 344, 11 S. W. 347.

Canada.-Hubley v. Morash (1894) 27 N. S. 281; Johannson v. Gudmundson (1909) 19 Manitoba L. R. 83 (voidable where beneficial to infant).

The reported case (CASEY V. KASTEL, ante, 995) is an important one, bringing New York into line with those states which have adopted what appears to be the sounder doctrine, that an appointment of an

agent by an infant, and acts of the latter under such appointment, are merely voidable. The decision in effect overrules several earlier cases in that state, cited under II. b, infra, which support a contrary view.

Dicta or decisions to the effect that all acts done and contracts executed by an infant through the intervention of its agent are void have been regarded in Maine as inaccurate and unsound, the appointment by an infant of an agent, for certain purposes at least, belonging to that class of voidable contracts only, in relation to which infancy is a personal privilege which no one except the infant or his legal representative is entitled to assert. Towle v. Dresser (Me.) supra. See also Hardy V. Waters (Me.) supra.

A direct authority on the question, holding an infant's power of attorney only voidable, is Coursolle v. Weyerhauser (Minn.) supra, in which, in holding that an appointment by a minor of an attorney to sell and convey real estate, and a conveyance by the attorney under such an appointment, were not void, but voidable merely, and capable of ratification by the infant after he attained his majority, the court said: “The question remains—which to our minds is the most important one in the case-whether the act of a minor in appointing an agent or attorney is wholly void, merely voidable. Formerly the acts and contracts of infants were held either void, or merely voidable, depending on whether they were necessarily prejudicial to their interests, or were or might be beneficial to them. This threw upon the courts the burden of deciding in each particular case whether the act in question was necessarily prejudicial to the infant. Latterly the courts have refused to take this responsibility, on the ground that, if the infant wishes to determine the question for himself on arriving at his majority, he should be allowed to do so, and that he is sufficiently protected by his right of avoidance. Hence the almost universal modern doctrine is that all the acts and contracts

or

V.

of an infant are merely voidable. Up- mings v. Powell (1852) 8 Tex. 80 (a on this rule there seems to have been case where infants before attaining ingrafted the exception that the act majority attempted, through their of an infant in appointing an agent or guardian, to disaffirm a sale of land by attorney, and consequently all acts them), that “it is a matter of great and contracts of the agent or attor- convenience, if not of absolute neney, under such appointment, are ab- cessity, that sales should be effected solutely void. This exception does by agents, and it seems quite prenot seem to be founded on any sound posterous that a sale by a minor, principle, and all the text-writers and which must necessarily, or may most courts who have discussed the subject conveniently, be made through the inhave, so far as we can discover, con- tervention of an attorney in fact, ceded such to be the fact. On prin- should be void, but if made by himself ciple, we think the power of attorney would only be voidable. His infanof an infant, and the acts and con- cy, instead of operating benefically, tracts made under it, should stand on would, under such circumstances, be the same footing as any other act or perverted to his injury. If the act be contract, and should be considered void, it is not binding on others; and voidable in the same manner as his if the property depreciate after the personal acts and contracts are con- sale, it might be thrown back upon his sidered voidable. If the conveyance hands, and his infancy would then be of land by an infant personally, who is turned against him, and, instead of of imperfect capacity, is only voidable, shielding himself, would protect as is the law, it is difficult to see why others." his conveyance made through an at- So in Ferguson v. Houston E. & W torney of perfect capacity should be T. R. Co. (1889) 73 Tex. 344, 11 S. W. held absolutely void. It is a notice- 347, the court indicates that the propable fact that nearly all the old cases er rule in case of a power of attorney cited in support of this exception to given by an infant to sell land is that the general rule are cases of technical the power is merely voidable, and not warrants of attorney to appear in absolutely void, although a decision on court and confess judgment. In these the question was unnecessary in this cases the courts hold that they would case. The court said that whether always set aside the judgment at the such a power of attorney was void or nstance of the infant, but we do not merely voidable had not been decided find that any of them go as far as to in that state; that many authorities hold that the judgment is good for no held that such a power was void, while purpose and at no time. The courts it was well settled that a deed exehave, from time to time, made so many cuted by an infant was merely voidexceptions to the exception itself that able; that it was unable to appreciate there seems to be very little left of it, the reason given for this distinction unless it be in cases of powers of at- that the reason for the rule that the torney required to be under seal, and deed of an infant is voidable is to prowarrants of attorney to appear and tect him against his own lack of disconfess judgment in court.

cretion and the craft of others, and Hence, notwithstanding numerous gen- that it was unable to discover any eral statements in the books to the substantial reason why the same rule contrary, we feel at liberty to hold, in should not apply to a power of attoraccordance with what we deem sound ney, as the infant would thereby be principle, that the power of attorney afforded ample protection against the from plaintiff to Dorr, and the deed to injurious consequences of indiscreet Brown under that power, were not ab- and improvident contracts and acts solutely void because of plaintiff's in- done during his minority. fancy, but merely voidable, and that See also Hyer v. Hyatt (1827) 3 they were ratified by him after attain- Cranch, C. C. 276, Fed. Cas. No. 6,977, ing his majority."

in which the court expressed the And it was said (obiter) in Cum- opinion that no contract entered into

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