Barber v. Gross

Supreme Court of South Dakota · 1952 · Contracts

ContractsMinorsDisaffirmanceRestorationminor's contractsdisaffirmancepromissory noterestoration

Facts

Defendant bought used spraying equipment at age eighteen, paying $400 down and giving plaintiff a $1,000 promissory note. About nine months later, after the note matured, defendant told plaintiff he wanted to return the machine in as good condition as when received, but plaintiff refused to accept it. During defendant's possession, he used the machine, upset it on the highway, and had repairs made; defendant's evidence was that the machine was as good or very close to as good as when purchased. Defendant's pleadings and proof offered only to return the machine, and did not specifically offer to compensate for any depreciation or deterioration in value.

Issue

When a minor over eighteen is sued on a contract and pleads minority and disaffirmance, may the court direct a verdict for the seller because the minor did not specifically plead or prove payment or tender for depreciation in the goods? Also, who must go forward with evidence on depreciation where the minor offers to return the property and claims it is in as good condition as when received?

Rule

A minor over eighteen has the right to disaffirm a contract, but is liable under SDC 43.0105 for depreciation and deterioration of the property while it was retained by the minor. In litigation involving such disaffirmance, the court should treat the proceeding as one seeking disaffirmance and, before entering judgment for the minor, require the minor to do equity by making proper allowance for any depreciation. Where the minor offers to return the property and the seller claims deterioration, the seller must go forward with evidence on the issue of depreciation.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In Sioux Falls, nineteen-year-old Evan Mercer bought a used commercial floor buffer from Prairie Basin Supply, paying $300 down and signing a note for the balance. Eight months later, after the note came due, Evan told the seller he would return the buffer and claimed it was in essentially the same condition as when he received it, but he did not separately offer cash for any wear and tear.

If Prairie Basin sues on the note and moves for judgment on the ground that Evan never tendered money for possible depreciation before asserting minority, how should the court rule?

Explanation. The majority adopted a liberal rule for minors’ contracts. A minor over eighteen may disaffirm, and the court should treat the case as one seeking disaffirmance rather than apply strict rescission rules requiring prior tender of full restoration. Before entering judgment for the minor, however, the court should require the minor to do equity by allowing for any proven depreciation or deterioration.