WILLIAM KNUDSON vs. GENERAL MOTORCYCLE SALES COMPANY, INCORPORATED. BURTON RAYMOND vs. SAME.

TWO ACTIONS OF CONTRACT against the same defendant, each brought by a minor by his next friend to recover money paid by the plaintiff toward the purchase of a motorcycle under a contract of conditional sale avoided and repudiated by the plaintiff, who had delivered back the motorcycle to the defendant and demanded the money paid by him. Writs in the Municipal Court of the City of Boston dated respectively August 11 and August 25, 1916.

In the Knudson case the defendant's answer contained a claim in recoupment for use and misuse of the motorcycle by the plaintiff.

In the Municipal Court the cases were tried before different judges. In the Knudson case the judge found that the plaintiff was a minor, that when he made the contract he said that he was of age, that the contract was not beneficial to him and that the motorcycle was not a necessity for him. The judge ruled that the contract was one of conditional sale, and refused to give the rulings requested by the defendant. He found for the plaintiff in the sum

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of $121.70, and at the request of the defendant reported the case to the Appellate Division. The defendant filed in the Appellate Division a motion to recommit the report to the trial judge for amendment by adding to it a statement of certain things not contained in it. The Appellate Division made an order that the report be dismissed, and the defendant appealed.

The judge before whom the Raymond case was tried found that the plaintiff was a minor at the time that the contract of conditional sale was executed and that the motorcycle was not a necessity. He found for the plaintiff in the sum of $78, and at the request of the defendant reported the case to the Appellate Division. The Appellate Division made an order that the report be dismissed, and the defendant appealed.

A. W. Blakemore, for the defendant.

H. D. Linacott, for the plaintiff Knudson, submitted a brief.

R. T. Healey, for the plaintiff Raymond.

BRALEY, J. By their failure in performance, no title to the motorcycles passed to the plaintiffs, and ordinarily all payments made on account of the purchase price would be forfeited. Chase v. Ingalls, 122 Mass. 381. Bailey v. Hervey, 135 Mass. 172. Smith v. Aldrich, 180 Mass. 367. But, as they were minors during the time covered by the contracts, each plaintiff seeks in the present actions to recover back the moneys paid.

The finding of the trial judge that the motorcycles were not necessaries is not assailed, and, notwithstanding the recital in each of the instruments, "that he is at least twenty-one years of age," the plaintiffs even if the statements were false are not estopped from disaffirmance. Merriam v. Cunningham, 11 Cush. 40. White v. New Bedford Cotton Waste Corp. 178 Mass. 20. Sims v. Everhardt, 102 U.S. 300. The contracts, therefore, even if treated as executed, can be avoided, and, if material, the motorcycles being in possession of the defendant, there is no consideration to be returned. Benson v. Tucker, 212 Mass. 60, 62.

It is true that recoupment is pleaded. The plaintiffs, however, are not liable in tort for deceit arising from false representations as to their age, or for damages to the machines while in their possession and used by them under the contract. Slayton v. Barry, 175 Mass. 513. Drude v. Curtis, 183 Mass. 317.

The defendant cites Walker v. Davis, 1 Gray 506, where it was

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remarked that infancy is not a defence to a civil action for fraud. But Walker v. Davis, as pointed out by Lathrop, J., in Brooks v. Sawyer, 191 Mass. 151, 153, is disposed of by Drude v. Curtis, 183 Mass. 317.

It was said by Morton, J., in Gillis v. Goodwin, 180 Mass. 140, where the plaintiff, a minor, sued to recover certain sums paid under a contract for the conditional sale and purchase of a bicycle, "Whatever may be the law elsewhere ... it is settled in this State that a minor can avoid a contract like that in this case, and is not obliged to put the other party in statu quo or allow anything for the rent and use of the property while in his possession. Morse v. Ely, 154 Mass. 458. Pyne v. Wood, 145 Mass. 558. McCarthy v. Henderson, 138 Mass. 310. Dube v. Beaudry, 150 Mass. 448. Walsh v. Young, 110 Mass. 396. Chandler v. Simmons, 97 Mass. 508, 514." We find nothing in the elaborate argument of the learned counsel for the defendant by which in principle the cases at bar can be distinguished.

It follows that the requests for rulings were denied properly, and, whether in the Knudson case the defendant's motion to recommit the report of the trial judge for amendment or amplification should have been allowed, was discretionary with the Appellate Division, whose general order dismissing the report is to be treated as a denial of the motion. The entry in each case must be

Order dismissing report affirmed.