KIMBALL v. BRUCE, 58 N.H. 327 (1878)

KIMBALL v. BRUCE.

Supreme Court of New Hampshire Merrimack.
Decided June, 1878.

When a minor buys and receives property of his debtor at an agreed price, in part payment of the debt, and on coming of age is unable to restore the property rescinds the executed contract of purchase and payment, and sues for the amount of the debt, he is not chargeable for the excess of the agreed price above the value of the property.

ASSUMPSIT, for money had and received. The plaintiff, when a minor, bought and received of the defendant certain chattels at an agreed price, in part payment of a debt of $1,100 (money had and received) due him from the defendant. While still a minor he sold the chattels, and is unable to restore them to the defendant. After coming of age, he brought this suit to recover the $1,100. The court instructed the jury to allow the defendant the value of the chattels, and not the agreed price, and the defendant excepted. Verdict for the plaintiff.

Wadleigh Wallace and C. P. Sanborn, for the defendant.

Barnard Leach, for the plaintiff.

DOE, C. J.

The defendant has made no effort, by brief or argument, to maintain his exception, and it is untenable. Carr v. Clough, 26 N.H. 280, 293, 294; Heath v. West, 28 N.H. 101, 110; Locke v. Smith, 41 N.H. 346, 353; Young v. Stevens, 48 N.H. 133, 137; Heath v. Stevens, 48 N.H. 251; 2 Kent Com. (12th ed.) 236, n. 1, 240; Benjamin on Sales, s. 27, n. If the chattels were necessaries, the plaintiff was not chargeable for more than their value.

Judgment on the verdict.

BINGHAM, J., did not sit.