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by provisions in the mortgage wholly apart, conveyed to plaintiff, who also paid four of the therefrom. See Owings v. McKenzie, 133 Mo. notes and replaced the stock as sold; that upon 323, 33 S. W. 802, 40 L. R. A. 154; Westmin- transaction, and so notified the defendants, who

attaining his majority he elected to rescind the ster College v. Peirsol, 161 Mo. 270, 61 S. W. refused to receive back the property, and de811; Curry v. La Fon, 155 Mo. App. 678, 135 manded payment of the other notes, and that he S. W. 511. But, notwithstanding the due offered to reconvey the merchandise and capital date specified even in a negotiable promissory ants were insolvent; and asking the court to

stock on repayment of $2,400; and that defendnote, its maturity may be and frequently is decree a return of the amount paid, or appoint accelerated so as to authorize suit thereon a receiver-showed a cause of action in equity, at an earlier date by a competent provision $ 2786, providing that no action shall be main

rather , therein to the effect that the entire sum stip- tained on a deed contracted during infancy, ulated shall become due on default of the unless it shall have been ratified after becoming payment of an installment of interest. See of age, applies when the party sued pleads Boyd v. Buchanan, 176 Mo. App. 56, 162 S. with the jurisdiction of equity over suit to annul

s minority as a defense, and does not interfere W. 1075, and the rule obtains, too, with like contracts made during minority, especially when effect against the guarantor. See Phelps v. part of the instruments are negotiable notes. Sargent, 69 Minn. 118, 71 N. W. 927. The re- [Ed. Note.- For other cases, see Jury, Cent. cent case of Binz v. Hyatt, 200 Mo. 299, 98 s. Dig. 88 40-60, 66-83; Dec. Dig. Om 14.] W. 637, while not in point because it pro 2. INFANTS 58—DISAFFIRMANCE-ACTION. ceeds in part on the Iowa statute and, further

In such case the action, commenced within more, relates to the breach of a guaranty to a proper time, was in itself a disaffirmance of

the contract. attend a sale, nevertheless recognizes and

[Ed. Note.-For other cases, see Infants, Cent. points out the distinction in a case such as Dig. 88 149-160; Dec. Dig. 58.] this one where the bond aptly calls for the provisions of a deed of trust from one pre

3. INFANTS Omw 58-RESCISSION OF CONTRACT

MADE IN MINORITY MULTIPLICITY OF senting the features of a promissory note SUITS. secured by deed of trust, which note on its Such action might be brought for the plainface contains no such provision, and there- tiff's own protection on the theory that it would

avoid a multiplicity of suits on the several notes fore passes as a “courier without luggage,” given to defendants and coming into the hands whose maturity is therefore to be determined of different parties. alone by reference to the time named there- [Ed. Note.-For other cases, see Infants, Cent. in. We conclude that, as the bond under Dig. SS 149–160; Dec. Dig. 58.] consideration expressly recites it is subject 4. RECEIVERS ww24 - GROUNDS — RESCISSION to the terms of the mortgage, and the mort- OF INFANT'S CONTRACT. gage contains a provision to the effect that On such facts the plaintiff had a right to it along with the entire indebtedness should apply for the appointment of a receiver. become due after the default above referred Cent. Dig. g 32; Dec. Dig. Em 24.]

[Ed. Note.-For other cases, see Receivers, to and the declaration of the trustee to that

DISPOSIeffect or the actual sale of the property, such 5. EQUITY Ow39 - JURISDICTION

TION OF ALL QUESTIONS INVOLVED. bond became then due accordingly for all

In such case equity, having jurisdiction, had purposes in 1899. Such was maturity within power to dispose of all questions involved and the contemplation of the parties as revealed to do all things necessary to secure complete in the bond, and the guaranty contract of de-equity between the parties, including the entry

of a money judgment. fendant became effective and enforceable ac

[Ed. Note. For other cases, see Equity, Cent. cordingly. Of course, if the bond matured Dig. $$ 104-114; Dec. Dig. Oww39.] at that time for the purposes of suit, as we

RATIFICAhold it did, in 1899, then the statute of limi- 6. INFANTS Om57 – CONTRACTS

TION. tations attached immediately and bars the

Where an infant entered into a contract for right of recovery for the interest sued for the purchase of a stock of drugs, fixtures, etc.,

and for the capital stock of the drug company, in this suit, instituted December 31, 1910.

giving his notes and a chattel mortgage and reThe judgment should be reversed.

It is so

placing the stock as sold, and, on the day after ordered.

his majority elected to disaffirm, and so notified

defendant, his subsequent act in selling or tradREYNOLDS, P. J., and ALLEN, J., concur. ing a lot of bandages valued at $5, and his reten

tion of the store down to the time of the trial, did not amount to a ratification under the statute, since he had done all that he could, and,

after defendant's refusal to accept tender, conMOSER V. RENNER et al. (No. 14113.) tinued in possession as a bailee. (St. Louis Court of Appeals. Missouri.

[Ed. Note. For other cases, see Infants, Cent. Nov. 2, 1915. Rehearing Denied

Dig. 88 136-148, 151; Dec. Dig. 57.] Nov. 23, 1915.)

7. INFANTS Omm 58DISAFFIRMANCE OF CON1. JUBY Om 14–NATURE OF ACTION.

TRACT-TENDER. A petition, alleging that a corporation In such case, where it appeared that the owned a stock of drugs, fixtures, etc; that de- capital stock of the corporation which plaintiff fendant and his wife owned all its capital stock; had purchased with its drug business belonged that plaintiff, then a minor, contracted to buy to defendants individually, so that they had the stock for $4,000, $2,000 payable in cash and absolute control of the corporation, plaintiff, the balance by notes each for $100, secured by a nominally the owner of such stock, was not rechattel mortgage; that the stock, etc., was quired to tender it to himself as representing

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the corporation, but his tender to defendants as that plaintiff was to withhold the delivthe real parties in interest was sufficient.

ery of the notes until a later date and until [Ed. Note.--For other cases, see Infants, Cent. he should become satisfied that the defendDig. $$ 149–160; Dec. Dig. Om58.] 8. APPEAL AND ERROR Ow1144–REMAND-RE- of the company; that pursuant to this agree

ants had paid all of the debts and obligations CEIVER.

Where the judgment, in an action to rescind ment plaintiff retained the notes and morta contract for the purchase of a stock of drugs, gage until the spring of 1912, when, still a etc., entered into while plaintiff was a minor, minor, he delivered them, together with the provided for the appointment of a receiver if the money awarded plaintiff was not repaid to mortgage to the defendants, excepting the him by defendants, the Supreme Court, affirm- four of the notes first maturing, which, priing on appeal, would remand it to the circuit or to that time, had been paid to the decourt for the adjustment of its order to meet the situation as changed by the appeal, with fendants by the plaintiff ;, that the remainpower to appoint a receiver, if necessary. ing 16 notes delivered to defendants by plain

[Ed. Note. For other cases, see Appeal and tiff bore date March 21st, 1911, and upon Error, Cent. Dig. § 4479; Dec. Dig. 1144.] the direction of both defendants were made

Appeal from St. Louis Circuit Court; payable to the defendant Elizabeth Renner; Rhodes E. Cave, Judge.

that defendants are now the owners and "Not to be officially published."

holders of these notes and that plaintiff has Action by Otto J. Moser against Charles been continuously, since March 21st, 1911, Renner and others. Judgment for plaintiff, and now is, the owner and in possession of and defendants appeal. Affirmed, and cause all of the stock of drugs, merchandise, furremanded for further proceedings.

niture and fixtures so conveyed to them, exHenry G. Trieseler, of St. Louis, for ap- chandise sold by him in the usual course of

cept such of the stock of drugs and merpellants. Collins, Barker & Britton and B.

. B. Watkins, all of St. Louis, for respondent. business, and that the portion of such stock

,

of drugs and merchandise so sold by him REYNOLDS, P. J. Plaintiff, in his peti- has been for the most part replaced by him tion, filed September 20th, 1912, avers that with other similar merchandise, purchased

in the usual course of business; that some on March 20th, 1911, the Kaltwasser Drug Company, a corporation, was the owner of a other drugs and merchandise have been addstock of drugs and merchandise and of the ed to the stock, so that the same is at this furniture and fixtures on premises described time appreciably of the same value as when in the city of St. Louis, and that the de- purchased by him. The petition further fendant Charles Renner and Elizabeth Ren- avers that immediately upon attaining his ner, husband and wife owned all of the cap- majority, plaintiff elected to rescind the ital stock of that company; that at the transaction above set out with defendants date above mentioned plaintiff was a minor, and so notified them and offered to reconvey not having attained his majority until Au- and deliver back to them all of the stock gust 21st, 1912; that on that date, plaintiff of goods, merchandise and furniture so conand these defendants entered into an agree- veyed to him in the transaction and to rement by which the stock of drugs and mer- turn the stock of the corporation and to place chandise and furniture and fixtures was sold defendants in statu quo as far as possible by the Kaltwasser Drug Company to plain and demanded of defendants that they would tiff for $1,000 $2,000 to be paid in cash, repay him the amount of $2,400 in cash paid plaintiff to give his 20 negotiable promis- by him to them on account of the purchase sory notes, each in the sum of $100, payable price thereof, which demand was refused, demonthly, beginning June 1st, 1911, for the fendants declining and refusing to rescind balance, the notes to be secured by a chattel the transaction, or to receive back the propmortgage on all of the drugs, merchandise, erty, and on the other hand demanding the furniture and fixtures then in the drugstore payment of such of the notes as are now of that company, the cash to be paid and due. It is further averred, on information the notes to be delivered to defendants. As and belief, that the defendants have no proppart of this transaction defendants were erty which can be subjected to an execualso to transfer to plaintiff or his nominees tion upon a judgment that may be secured all of the capital stock of the Kaltwasser by him against them for the $2,400. The Drug Company. It is averred that this premises considered, offering to reconvey the agreement was consummated, plaintiff paying property to defendants or to the Kaltwasser them the cash, executing his notes and the Drug Company as they may desire and to chattel mortgage, and the defendants caus- transfer to defendants all of the capital stock ing the Kaltwasser Drug Company to exe- of the company upon repayment to him of the cute and deliver to plaintiff its bill of sale $2,400, plaintiff prays for a judgment and conveying all of the merchandise contained decree of the court rescinding the transacin the drugstore as well as all its furni- tion cancelling the notes and mortgage to seture and fixtures to plaintiff, and placing cure the latter, and that defendants be replaintiff in possession thereof. It is further quired to surrender the same into court for averred that it was a part of this agreement that purpose, as also for a judgment against the defendants for the $2,400, and that the dise, furniture and fixtures and the capital stock judgment provide that upon the payment of of the Kaltwasser Drug Company, a corporathe $2,400, plaintiff shall convey and deliver merchandise, stock, furniture and fixtures being

tion, organized under the laws of Missouri (the back to defendants all of the stock of drugs located at and the corporation conducting busiand merchandise, fixtures and furniture and ness_at 1924 Pestalozzi street in the city of the capital stock of the Kaltwasser Drug consideration of the sum of four thousand dol

St. Louis, Missouri), was sold to plaintiff in Company, or, if the court shall deem it meet lars ($4,000); that plaintiff paid to defendants and proper, that a receiver be appointed by the sum of two thousand dollars ($2,000) in the court to take charge of the stock of drugs, cash, and gave to them twenty (20) of his nemerchandise, fixtures and furniture for the lars ($100) each, dated March 21st, 1911, pay

gotiable promissory notes for one hundred dolpurpose of holding and preserving the same able monthly, beginning June 1st, 1911, which and to sell and dispose of it under the direc- notes were secured by a chattel mortgage on all tion of the court, applying the proceeds to of the said drugs, merchandise, furniture and payment of the judgment and the costs of 1911.

fixtures, the mortgage being dated March 21st, this action, as far as necessary, paying any "That pursuant to an agreement between the balance left over to defendants, and for gen- parties and in accordance therewith, four of the eral relief.

notes were paid by plaintiff to the defendants

and defendants now have in their possession the The answer, after a general denial, avers remaining sixteen (16) notes and the chattel that every contract so entered into by plain- mortgage securing the same. tiff as a party thereto during his minority 1911. and at the time of the payment of said

"The court further finds that on March 20th. and before he attained the age of 21 years, four (4) notes, plaintiff was a minor and attainhas been fully ratified and affirmed by plain- ed his legal majority on August 21st, 1912; tiff after he attained his majority and after that on August 22nd, 1912, plaintiff gave to the institution of this suit, by plaintiff dis- to rescind said

purchase and tendered to them all

defendants a notice, in writing, that he elected posing of part of the property and by exercis- of the merchandise, furniture, fixtures and other ing acts of ownership thereover and by con- property received from defendants; that since ducting the business after he attained his attaining his majority, plaintiff has not, in any

' majority and continuing in the sale of the way, ratified said purchase; and that defendgoods and commodities in the business and "And the court doth thereupon order, adjudge disposing of such parts of the same as he and decree that the entire transaction between has sold since he attained his majority on by, set aside and for naught held; that the re

plaintiff and the defendants shall be, and is hereAugust 21st, 1912, such property sold and maining sixteen (16) notes, and chattel mortdisposed of by plaintiff being the same prop- gages securing the same, now in possession of erty received by him from these defendants defendants shall be surrendered by defendants

to the clerk of this court, within ten (10) days during the period of his minority and be- from this date, and shall be cancelled by the clerk fore he attained the age of 21 years.

and delivered to plaintiff; that the capital stock To this a reply, denying the averments of of the Kaltwasser Drug Company, now in the

possession of the plaintiff, within ten (10) days new matter, was filed.

from this date shall be surrendered by plaintiff When the cause was called for trial, coun- to the clerk of this court, for the use of defendsel for defendants stated that he considered ants, and it is considered and adjudged by the the case one for the jury and made formal court that plaintiff recover of defendants, the

sum of twenty-four hundred dollars ($2,400), objection to the setting of the case for trial together with his costs and charges in this beas one in equity, for the reason that it is not half expended and have execution therefor. a case in equity, and that defendants' con- “And the court further orders and decrees stitutional rights to a trial by jury have not tiff of the above sum of twenty-four hundred

that upon the payment of defendants to plainbeen waived and consequently they are enti- ($2,400) dollars, together with the costs of this tled to a jury. The court announced that proceeding, plaintiff shall surrender to defendit would proceed and hear the testimony and ants, all the merchandise, drugs, furniture and pass on the question of whether or not de- court further orders and decrees that if defend

fixtures now located in said drug store and the fendants were entitled to a jury later. De ants, within ten days from this date, shall fail fendant excepting to this, the trial proceeded to fully comply with this judgment and decree, before the court.

a receiver will be appointed by the court for

the purpose of taking charge of the drugs, merIt was further objected that the petition chandise, furniture and fixtures located at 1924 set out no cause of action for equitable re- Pestalozzi street, in the city of St. Louis, Mislief.

souri, and disposing of the same and applying At the conclusion of it the court entered of the receivership, then to the payment of the

the proceeds, first, to the payment of the costs up its judgment as follows:

above judgment for twenty-four hundred dol“Now this cause having come on to be heard lars ($2,400) and the balance, if any, to be paid upon the petition, answer and reply, and the to defendants. Said receiver to give bond in the proof taken therein, and having been argued by sum of dollars, with surety or sureties counsel for the respective parties and submit- to be approved by the clerk of this court." ted to the court, and the court having duly Filing a motion for new trial and exceptconsidered the same, doth find:

“That the allegations of the plaintiff's petition ing to the action of the court in overruling it, herein, are true, and that plaintiff is entitled defendants have duly appealed. to the relief prayed for in his petition, and the Here the learned counsel for appellants court doth specifically find:

make nine assignments of error. "That on or about the 20th day of March, 1911, plaintiff and defendants entered into an

First, to the denial of the demand for å Second, error in admitting illegal and im- should also enter up a money judgment, in no proper testimony offered by plaintiff.

manner changes the character of the action, Third, error in applying the law of the nor was it beyond the power of the court, case to the facts in evidence.

having possession of the cause as a cause in Fourth, fifth, sixth and seventh, that the equity on the chancery side of the court, to finding and judgment is against the law and dispose of all the questions involved.

It was the evidence, against the weight of the evi- within the power of that court to do all dence, and erroneous under the evidence in things necessary to secure complete equity the case and in decreeing and ordering a sur- between the parties and to put them in the render and cancellation of the notes and position to which, on principles of equity, chattel mortgage, and in setting aside the they were entitled. These propositions may contracts embodied in the transaction in the be said to be truisms, so ancient as to require case.

no illustration by authority; text-books and Eighth, that the court erred in ordering our reports afford full warrant for such a the appointment of a receiver.

proceeding. Ninth, that the court erred in its finding The cases principally relied upon by learnand judgment which it is claimed should ed counsel for appellant are Koerner v. Wilhave been for defendant.

kinson, 96 Mo. App. 510, 70 S. W. 509, and [1-5] As to the first assignment of error, Ridgeway v. Herbert, 150 Mo. 606, 51 S. W. that this was a case for the jury and not in 1040, 73 Am. St. Rep. 464. equity, and along with that that an equitable Koerner v. Wilkinson merely decides that qause of action was not set out in the peti- in an action against one on a contract, if tion, we do not think either position main- infancy is pleaded in bar, this defense is tainable. In support of the first, learned triable as at law, and that our statute, now counsel for appellants rely upon section 2786, section 2786, supra, is exclusive as to what Revised Statutes 1909. This is not an ac amounts to acts of ratification. tion whereby it is sought to charge a minor A careful reading of the opinion in Ridgeupon a debt contracted during infancy, and way v. Herbert, supra, does not warrant the it is to such actions that section 2786 refers. conclusion drawn from it by the learned The statute is applicable when the party sued counsel. There, an action in ejectment, the pleads minority or infancy as a defense. defense set up in the first count of the anIn the case at bar, however, having disaf-swer, was minority of the defendant at the firmed the contract immediately upon attain time he executed the instrument under which ing majority, first, by notice to defendants, plaintiff claimed. By Icross-bill defendant second, by this very suit, which was com- set up not only minority when that instrumenced within 30 days after he attained his ment was executed but fraud practiced upon majority, the infant here disaffirmed. As him in obtaining it. The parties tried the suming, as contended by counsel for defend- whole case as in an action at law and the ants, that the notice served on the defendants court held that while that was improper as of the disaffirmance was insufficient, in that to matters at issue under the cross-bill, the it was not signed and did not specifically parties were estopped by their action to now offer the return of the certificates of stock, make the point that the issue presented by this action itself, commenced within proper the cross-bill should have been tried as in time, is in itself a disaffirmance. We do not equity. Very clearly the defense against understand that section 2786 in any manner the instruments, there a lease and assigninterferes with the ancient jurisdiction of ment of it, on the ground of minority, pre chancery courts to entertain suits for the sented an issue at law for the determination annulment of contracts entered into during of the jury. But it is not clear from anyminority, especially when part of those in- thing said in Ridgeway v. Herbert that the struments, as here, are negotiable promissory issues presented by the cross-bill were separnotes. The plaintiff here was not bound to able. That cross-bill asked for an injunction wait until these defendants, or parties to against the prosecution of suits on the allegwhom they may have negotiated these in- ed instruments and also prayed that the struments and along with them the chattel cloud which that lease casts over the title mortgages, saw.fit to bring an action on them, of plaintiff be removed. Both fraud in obbut for his own protection and even on the taining the lease and minority were alleged. theory that this action by him might avoid The Supreme Court reversed the decree a multiplicity of suits, if these notes fell into which the circuit court had entered and dithe hands of different parties, he undoubted- rected it to enter judgment for the defendly had a right to appeal to a court of equity ant according to the verdict of the jury on to cancel the notes and the chattel mort- plaintiff's cause of action, and also cancelling gage. Furthermore, under the facts in this the assignment of the lease to plaintiff and case, he had a right to apply for the appoint- another, declaring the instruments involved, ment of a receiver on the contingency named were clouds on defendant's title which should in the petition. This latter undoubtedly per- be cancelled. So we find nothing in the case tains to a court of equity. The fact that that before the court which warrants the conclucourt in the course of its disposition of the sion which learned counsel for appellant rious instruments on account of the minority, he claims is a return of the money which he of the defendant in the case. But that was had paid out for this invalid sale. When the not all that was asked. A receiver was also defendants refused to accept the tender of prayed for and that pertained to the chan- this property made to them by plaintiff, it cery side of the court.

was the duty of plaintiff to take all proper [6] On a careful reading of all the testi- care of it, prevent it from being damaged and mony in this case at bar we see no ground protect it from loss, and he appears to have to arrive at a conclusion other than that ar- done that very effectually; in point of fact, rived at by the learned trial judge and set according to the testimony in the case, inout by him in the judgment rendered. The stead of its depreciating in value in his acts of ratification relied on are sales from hands, he has added considerably to it, at the stock in the drugstore by plaintiff and re- least has kept it up to the value that it had tention of the proceeds after he attained his when he received it from defendants. In a majority. The preponderance of the evidence way, after repudiating his contract and beis that these sales that he made of the old ing left in possession of the property by destock were made before he arrived at his fendants' refusal to take charge of it, the majority, with one possible exception, and plaintiff became a bailee. that was a lot of bandages of the probable value of $5. There was testimony that these this stock of goods from the corporation,

[7] It is true that the plaintiff acquired bandages were disposed of by trading them when he purchased all of the capital stock in for other articles, by the plaintiff after he that corporation, but all of that capital stock arrived at his majority. But this was after at the time belonged to these defendants, who, plaintiff had disaffirmed by his notice to the in fact, were the corporation. Indeed, the defendants and after he had brought this ac-deal for the purchase of this store was ention. As said by our Supreme Court in Ridgeway v. Herbert, supra, 150 Mo. loc. cit. tirely on the theory that it belonged to these

defendants. They owned all the capital stock 616, 51 S. W. 1040, 73 Am. St. Rep. 464, defendants could not possibly have been misled and through that ownership had absolute conby any such act into believing that the plain. 139 Mo. 1, 39 S. W. 486, 40 S. W. 353, 37

trol over the corporation. Jones v. Williams, tiff had withdrawn his disaffirmance. But it 139 Mo. 1, 39 S. W. 486, 40 S. W. 353, 37 L.

At the time is said that plaintiff retained the drugstore R. A. 682, 61 Am. St. Rep. 436. which had been sold to him during his minori- plaintiff disaffirmed his contract and tendered ty after he arrived at age and even down to

back the drugs, fixtures and furniture and the time of the trial of this suit. We do not stock, he was nominally the owner, either think that this amounts to a ratification un- through himself or a trustee, of all the shares, der the statute. The plaintiff had done all was the president and treasurer of the comthat he could. He had promptly, on arriving pany. Surely a tender to himself, as reprethat he could. He had promptly, on arriving senting the corporation, would have been a at his majority, offered to return the certificates of stock and this store with all that senseless and meaningless performance. He it contained, including also new goods that he made the tender to the real parties in interhad himself bought and with which he had re

est—these defendants—and according to the placed old goods sold during his minority, and allegations in his petition and according to he again offers in his petition in this case to the evidence in the case has at all times stood turn these over as well as the stock certifi. ready to turn everything over to these defend

ants. cates, together with the new goods which he has since put into the store. As is said by

Our conclusion on the evidence in the case the Kansas City Court of Appeals in Tower is that the judgment and finding of the cirDoyle Com. Co. v. Smith, 86 Mo. App. 490, loc. cuit court is sustained by ample evidence and cit. 494, the contract of an infant when re- is right under the law and that evidence and pudiated by him leaves the parties without a should be affirmed. contract and the infant therefore has such [8] Inasmuch, however, as that judgment rights as would exist had there been no con- is an open one in that it provides for the aptract. In that case plaintiff had in effect pointment of a receiver, in the event that the turned over the possession of the cattle to money awarded plaintiff is not repaid to him the defendant there without a contract of sale by the defendants, the case is remanded to and mortgage for the purchase money and the circuit court to the end that that court defendant had fed and cared for them for may adjust its order to meet the situation as plaintiff's benefit. The court held he was changed by the appeal, with power in that therefore entitled to a lien for this under the court to appoint a receiver, if necessary. general statute (section 4228, Revised Stat- The judgment is accordingly affirmed and utes 1899), providing for liens where animals the cause remanded for such further proceedare boarded and cared for.

ings as may be necessary and as herein inThe plaintiff here is claiming no lien or dicated. reimbursement of any kind for moneys paid out by him in the care of the property. All NORTONI and ALLEN, JJ., concur.

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