Murdock v. Fisher Finance Corporation

NOURSE, J.

Plaintiff, a minor of the age of nineteen, sued to rescind his contract with the defendant for the purchase of an automobile. The plaintiff recovered judgment for $615.97 with interest and the defendant has appealed on a typewritten transcript.

On June 17, 1924, the parties executed their written contract whereby the plaintiff agreed to purchase from the defendant a Stutz automobile for the stipulated purchase price of $917.12, ,$450i 2thereof to be paid upon the execution of the agreement and the balance in equal monthly installments of $51.90 each. Plaintiff satisfied the initial payment by delivering to defendant a Ford automobile and thereafter paid in cash the sum of $165.75. On October 7, 1924, the plaintiff in writing notified the defendant of his disaffirmance of this contract, offered to restore the Stutz car and demanded payment of the sum of $615.75. During the period of three and two-thirds months when the plain

[789]

tiff had possession of the car he had driven it something over three thousand miles, using it for both business and pleasure. While driving the car he had been in collision with another car and had destroyed one of the fenders; he had stripped the gears and otherwise damaged the car to the extent of $128 in repairs which the defendant was required to pay. When he attempted to rescind the contract he made no offer to restore the consideration nor specifically to reimburse defendant for the use of the car, the depreciation through ordinary use, or the cost of the repairs. He merely offered to restore the car in its damaged condition and demanded that the defendant pay him the sum of $615.75 in money though he, the plaintiff, had covered $450 of that sum by the delivery to defendant of a second-hand Ford car.

Section 35 of the Civil Code permits a minor to disaffirm his contract upon returning the consideration or paying its equivalent. This right to disaffirm, like the right to rescind accorded a party under sections 1688 et seq. of the same code, is based upon the equitable consideration that where a contract is made under the circumstances enumerated in the code, the court should be permitted to use its equity power to place the parties

in statu quo

as nearly as this may be done. For this reason section 35 provides that a minor over the age of eighteen may disaffirm upon restoring the consideration or paying its equivalent. Section 1691 provides that a party to a contract may, under certain conditions, rescind, but that he. must restore to the other party everything of value which he has received, or must offer to restore the same.