Freitas v. Cordeiro

BARNARD, P. J.

This is an action to recover certain payments made upon a contract to purchase personal property after a rescission of said contract, based upon the minority of the plaintiffs. The two plaintiffs, together with one Bettencourt, who was not a minor, agreed to purchase from the defendant Cordeiro about 120 head of cattle, with some horses, hogs, poultry and certain farm machinery, for the sum of !$12,000. Five hundred dollars was paid in cash, of which each of the purchasers paid one-third, and the remainder was payable in installments. The purchasers used the property in operating a dairy. After two or three months, Bettencourt assigned his interest in the property to the two minors, without consideration, and quit the

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business. The two minors operated the dairy for about nineteen months, being about six months after one of them became of age, and then surrendered the property to the defendant Cordeiro' and brought this action to recover the amounts paid. The court found that the plaintiffs were minors at the time the contract was made, but that both were over the age of eighteen years; that the interest of Bettencourt had been assigned to the plaintiffs; that the plaintiffs had given notice to Cordeiro that they disaffirmed the contract; and that they then and there restored to him most of the property referred to in the contract and, in addition, delivered to him “a great deal of other personal property and stock which they had purchased and put into the business, so that the original property or its equivalent in value” was restored. The court also found that one of the plaintiffs had become of age and that such disaffirmance of the contract was made within a reasonable time thereafter ; that in addition to the original payment of $500, $2,846.51 had been paid in subsequent installments; and that the plaintiffs were entitled to interest on such payments from the dates when made. In pursuance of the findings, judgment was entered for $3,928.31, from which judgment this appeal is taken.

The appellant contends that notice of rescission was not properly given, and that the older of the two minors affirmed the contract after he became of age. We are convinced that these contentions are without merit and that the corresponding findings are sustained by the evidence.

A further contention that the judgment is erroneous in that it includes the entire $500 originally paid, when one-third of this was paid by Bettencourt, who was not a minor, is well taken. Since we think the case must be sent back for a new trial, this matter can then be adjusted.