Cobbey v. Buchanan

Supreme Court of Nebraska · Contracts

ContractsInfancyNecessariesEstoppelminorinfancy defenseestoppel in paisnecessaries

Facts

Cobbey, an attorney, sought to recover $50 for legal services allegedly performed for Buchanan at Buchanan's request. In district court, Buchanan answered with a general denial and a plea of infancy, and Cobbey argued that the infancy defense should be stricken and that Buchanan's alleged statement that he was over twenty-one should prevent him from relying on infancy. Part of the claimed services involved examining Buchanan's inherited property rights after his father's death, and part involved obtaining a writ of habeas corpus after Buchanan, a minor under guardianship who had been committed to the reform school and later retaken for violating parole, was being returned there. The record showed no evidence that Cobbey relied on Buchanan's alleged statement of majority, and the evidence showed Cobbey knew Buchanan was a minor.

Issue

Whether the district court erred by allowing Buchanan to plead infancy on appeal, by refusing an instruction based on Buchanan's alleged representation that he was of age, and by modifying an instruction so that services rendered to a minor under guardianship were recoverable only if they were necessaries. Also, whether the question whether the habeas corpus services were necessaries could be submitted to the jury.

Rule

On appeal from the lower court, the cause is tried on the same issues presented below, except for new matter arising after the first trial; but when no answer or bill of particulars was filed below and the record does not show the issues tried, the appellate court does not err in permitting an infancy defense. As a general rule, estoppel in pais does not apply to infants, and a representation by an infant that he is of age does not bar the infancy defense unless the representation was fraudulently made, was believed, relied on, and acted upon by the other party, and the estoppel is pleaded. A minor under guardianship is liable only for necessaries, meaning things necessary to his support, use, and comfort according to his condition and circumstances in life; whether something is a necessary is a mixed question of law and fact determined from the particular facts and circumstances.

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

In Lincoln, Nebraska, Nora Feld sued Tyler Ames in small claims court for unpaid consulting work. Tyler filed no written answer or bill of particulars there, and the record sent to the district court after appeal does not show what defenses were argued below. In district court, Tyler for the first time filed an answer denying liability and pleading infancy.

Nora moves to strike the infancy defense on the ground that an appellate trial must proceed on the same issues presented below. How should the district court rule?

Explanation. The majority held that appeals are generally tried on the same issues as below, except new matter arising later. But where the defendant filed no answer or bill of particulars in the lower court and the transmitted record does not reveal what issues were tried, the appellate court does not err by allowing a plea of infancy. The court's reasoning was that the defendant was free to interpose defenses below, and nothing in the record showed infancy had not already been in issue. (Derived from Cobbey v. Buchanan (n.d.).)