* Corpus Juris-Cyc. References: Infants, 31 C.J., p. 1001, n. 35, 36. Parent and Child, 29 Cyc., p. 1665, n. 99. On effect of approval by parent of infant's contract, as affecting latter's liability on, or right to disaffirm it, see annotation in 9 A.L.R. 1030; 14 R.C.L. 234; 3 R.C.L. Supp. 199; 6 R.C.L. Supp. 805. This is an action of replevin in which the appellant seeks to recover from the appellee the possession of an automobile. The appellant, a dealer in automobiles, sold the automobile in question to C.H. Holifield, accepted in part payment thereof a used automobile, and Holifield executed to it his promissory notes for the remainder of the purchase price, the appellant reserving the title to the automobile until the notes should be paid. Holifield failed to pay all of the notes, and some time after the maturity thereof the appellant brought this suit in order to obtain possession of the automobile.
C.H. Holifield is a son of the appellee, was twenty years old when he purchased the automobile here in question, and the automobile that he delivered to the appellant did not belong to him, but to his father, the appellee. After he made the exchange, he took the new automobile home, turned it over to his father, the appellee, and told him what he had done. The appellee did not return the automobile to the appellant, nor advise it of any objection on his part to the trade made by his son until after the notes given by his son had matured. He then offered to return the automobile if the appellant *Page 55 would give back to him the automobile his son had exchanged therefor. This the appellant declined to do; the reason given therefor being that it had sold the car to another.
The court below declined to instruct the jury to return a verdict for the appellant and to assess the value of the automobile, and instructed the jury for the appellee that, if they believed from the "evidence that the son of the defendant was a minor under the age of twenty-one years, at the time the said son signed the contract in evidence, then it is the sworn duty of the jury to return a verdict for the defendant."
Infancy as a defense to the enforcement of a contract is a privilege that can be availed of only by the infant himself, his heirs or legal representative, and the exchange of the appellee's automobile by his son with the appellant for the one here in question, though not authorized by the appellee in advance, was clearly ratified by him thereafter by his acceptance and use of the automobile here in question.
The peremptory instruction requested by the appellant should have been given.
Reversed and remanded.