Bobby Floars Toyota, Inc. v. Smith

269 S.E.2d 320 (1980)

48 N.C. App. 580

BOBBY FLOARS TOYOTA, INC. v. Charles Edward SMITH, Jr. and Stella L. Smith.

No. 808DC167.

Court of Appeals of North Carolina.

September 2, 1980.

*321 David M. Rouse, Goldsboro, for plaintiff-appellant.

No counsel contra.

MORRIS, Chief Judge.

The only question posed for review is whether defendant Charles Smith's voluntarily relinquishing the automobile ten months after attaining the age of majority constitutes a timely disaffirmance of his contract with plaintiff.

The rule in North Carolina regarding a minor's contract liability is as follows:

It is well settled that the conventional contracts of an infant, except those for necessities and those authorized by statute, are voidable at the election of the infant and may be disaffirmed by the infant during minority or within a reasonable time after reaching majority. Personnel Corp. v. Rogers, 276 N.C. 279, 172 S.E.2d 19; Fisher v. Motor Co., 249 N.C. 617, 107 S.E.2d 94; Collins v. Norfleet-Baggs, 197 N.C. 659, 150 S.E. 177; Chandler v. Jones, 172 N.C. 569, 90 S.E. 580.

Insurance Co. v. Chantos, 293 N.C. 431, 443-44, 238 S.E.2d 597, 605 (1977); Personnel Corp. v. Rogers, 276 N.C. 279, 172 S.E.2d 19 (1970); Eubanks v. Eubanks, 273 N.C. 189, 159 S.E.2d 562 (1968). "[W]hat is a reasonable time depends upon the circumstances of each case, no hard-and-fast rule regarding precise time limits being capable of definition." Insurance Co. v. Chantos, 25 N.C.App. 482, 490, 214 S.E.2d 438, 444, cert. denied, 287 N.C. 465, 215 S.E.2d 624 (1975).

This concept of "reasonable time" is more fully explained in Weeks v. Wilkins, 134 N.C. 516, 522, 47 S.E. 24, 26 (1904), where the Court quoted from Devlin on Deeds, Vol. I, sec. 91:

The most reasonable rule seems to be that the right of disaffirmance should be *322 exercised within a reasonable time after the infant attains his majority, or else his neglect to avail himself of this privilege should be deemed an acquiescence and affirmation on his part of his conveyance. The law considers his contract a voidable one, on account of its tender solicitude for his rights and the fear that he may be imposed upon in his bargain. But he is certainly afforded ample protection by allowing him a reasonable time after he reaches his majority to determine whether he will abide by his conveyance, executed while he was a minor, or will disaffirm it. And it is no more than just and reasonable that if he silently acquiesces in his deed and makes no effort to express his dissatisfaction with his act, he should, after the lapse of a reasonable time, dependent upon circumstances, be considered as fully ratifying it.

This rule was cited and applied in many early cases, sometimes modified by a special rule applying exclusively to conveyances of land, where the court in some situations deemed three years after majority as a reasonable time within which to disaffirm a deed or mortgage executed before majority. Faircloth v. Johnson, 189 N.C. 429, 127 S.E. 346 (1925); Hogan v. Utter, 175 N.C. 332, 95 S.E. 565 (1918); Chandler v. Jones, 172 N.C. 569, 90 S.E. 580 (1916); Baggett v. Jackson, 160 N.C. 26, 76 S.E. 86 (1912); Weeks v. Wilkins, supra.

Applying the general rule in an action involving a contract concerning personalty, the Court in Hight v. Harris, 188 N.C. 328, 124 S.E. 623 (1924), for example, held that an infant may avoid such a contract on account of his infancy during his minority or on coming of age, "if he acts promptly in the matter." 188 N.C. at 330, 124 S.E. at 624. See also Insurance Co. v. Chantos, 293 N.C. 431, 238 S.E.2d 597 (1977); Eubanks v. Eubanks, supra. In Insurance Co. v. Chantos, 25 N.C.App. 482, 214 S.E.2d 438, cert. denied, 287 N.C. 465, 215 S.E.2d 624 (1975), this Court stated that "the defendant's silence or acquiescence for eight months after reaching majority may work as an implied ratification, that determination depending upon whether his failure to disaffirm within that eight-month period was within a reasonable time . . . ." 25 N.C.App. at 490, 214 S.E.2d at 444. In the instant case, we believe that ten months is an unreasonable time within which to elect between disaffirmance and ratification, in that this case involves an automobile, an item of personal property which is constantly depreciating in value. Modern commercial transactions require that both buyers and sellers be responsible and prompt.

We are of the further opinion that defendant waived his right to avoid the contract. The privilege of disaffirmance may be lost where the infant affirms or otherwise ratifies the contract after reaching majority. Our Supreme Court has held that, under the particular circumstances, certain affirmations or conduct evidencing ratification were sufficient to bind the infant, regardless of whether a reasonable time for disaffirmance had passed. E. g. Watson v. Watson, 204 N.C. 5, 167 S.E. 389 (1933) (acceptance of proceeds from sale of land); Baggett v. Johnson, supra (inaction); Weeks v. Wilkins, supra (delay); Gaylord v. Respass, 92 N.C. 553 (1885) (inaction); Caffey v. McMichael, 64 N.C. 507 (1870) (act of ownership); McCormic v. Leggett, 53 N.C. 425 (1862) (acceptance of payment). See also Chandler v. Jones, supra. See generally 43 C.J.S. Infants § 168 (1978); Simpson on Contracts §§ 106-108 (2d ed. 1965). Application of this rule often leads to an equitable result, particularly where the infant can be fairly said to have recognized and adopted as binding a contract under which the infant accepts the benefits of the contract to the prejudice of the other party.

In the present case, it is clear that defendant Smith recognized as binding the installment note evidencing the debt owed from his purchase of an automobile. It is undisputed that he continued to possess and operate the automobile after his eighteenth *323 birthday, and he continued to make monthly payments as required by the note for ten months after becoming eighteen. In fact, defendant's conduct in returning the automobile and acquiescing in default being entered against him is strong evidence that defendant recognized the security agreement, which provided for repossession after default, as controlling. There is no evidence to indicate that defendant ever made a demand for rescission of the contract because of his infancy or that he ever had any intention of doing so. We hold, therefore, that defendant's acceptance of the benefits and continuance of payments under the contract constituted a ratification of the contract, precluding subsequent disaffirmance. Watson v. Watson, supra.

Reversed and remanded.

VAUGHN and WELLS, JJ., concur.