On June 5, 1925, Frank Hoffman, who was then about twenty years and eight months of age, purchased an automobile on which he made a *Page 263 down payment of $168. For the balance of the purchase money he executed a negotiable promissory note in the amount of $504, with a power of attorney to confess judgment annexed; the same being secured by chattel mortgage. The instrument provided for monthly payments of $42 each, and the purchaser made four of these monthly payments. The promissory note provided that it was payable at the main office of the Cleveland Trust Company, and the payments upon the note were made to that company and at its office. This note was written on a regular printed form, made payable to the order of the maker of the note, and was indorsed in blank by him. The chattel mortgage securing the promissory note was made payable to Howard D. Peck, of whom the car had been purchased. Late in October, 1925, after Hoffman became twenty-one years of age, he determined to disaffirm the contract, and thereupon returned the car, or caused his mother to return it for him, to Mr. Peck. Nothing on the promissory note indicates that the Edson Company or Edson Company had become the owner of it, and it does not appear that Hoffman had any knowledge that it was the owner.
When the action was originally brought by the Edson Company in the municipal court, a judgment was rendered for it on the cognovit note, and this judgment was afterwards, on motion, suspended. At a subsequent date, evidence was taken showing the facts above stated, and thereupon the municipal court found that there was no defense to the merits and overruled the motion to vacate the judgment. It is claimed that this decision is based upon the fact *Page 264 that the car was not returned to the proper person, and that no notice had been given to the Edson Company by Hoffman of his disaffirmance of the contract.
In Spencer v. Collins, 156 Cal. 298, 104 P. 320, 20 Ann. Cas., 49, it was held that notice of disaffirmance need only be given to the party with whom the contract was made, and need not be given to an assignee of the contract. See, also, Downing v.Stone, 47 Mo. App., 144.
An infant, either before or within a reasonable time after becoming of age, may disaffirm a contract not for necessaries. In the instant case, on electing to disaffirm, he caused the property to be returned, and this court is of the opinion that he was not required to do any more than that. While the application for credit signed by Hoffman gives his age as twenty-four years, his testimony that he stated his age as twenty years and that the seller filled in the age as twenty-four years is uncontradicted.
On the evidence contained in the bill of exceptions we think the trial court was in error in holding that there was no defense to the merits of the case, and for this reason the judgment is reversed, and the cause remanded for further proceedings.
Judgment reversed and cause remanded.
WILLIAMS and LLOYD, JJ., concur. *Page 265