An infant not under guardianship may enter into a valid contract for a necessary article, but a bicycle is not an article of necessity for a girl seventeen years of age working as a domestic and living in the house of her employer.
The truth of this proposition is so apparent that it hardly needs the support of judicial authority, but nevertheless the question has been decided. (Pyne v. Wood, 145 Mass. 558.) In the case cited a boy seventeen years of age residing with his father and working in a factory which was more than a mile from his father’s house, purchased a bicycle on th e installment plan, and paid sixty-four dollars on the contract out of his own wages. After using the wheel for some months he returned it and brought an action to recover the'amount paid. It was asserted that the wheel was an article of necessity to enable the boy to aide to and from his labor, and it was shown that he was allowed but one hour for his dinner, which was insufficient time to enable him to walk from the factory to his father’s house, dine and return, and that by means of the wheel he could do this. Nevertheless it was held that the wheel was not a necessity. 'The boy could have carried his dinner. It is not' every article that may be convenient for an infant in the employment in which he is engaged, or which may greatly contribute to his pleasure, that is a necessary article within the rules of law allowing infants to contract for necessaries. The rules relating to contracts by.infants are not harmonious, arising from the fact that hard cases make bad law, and courts have too frequently relaxed the' wise rules of the common law so as to do justice between litigants in particular cases. A few rules are well settled. An infant under guardianship cannot bind himself for necessaries to the same extent as an infant having no .guardian. It does not appear that the plaintiff in the case at bar *390has a general guardian, and the case is governed by the rules applicable to executory contracts by infants not under guardianship for the purchase of unnecessary articles. Formerly it was doubted whether an infant could rescind his contract, and it was held by some of the reported cases that he could not, because by reason, of his infancy he could no more annul than execute a contract — that he could not. elect to rescind until he reached his majority. But it is now settled in this State that an infant' may rescind an executory contract, for personal services, one. relating to personalty, or one for the payment • of money. (Chapin v. Shafer, 49 N. Y. 407; Sparman v. Keim, 83 id. 245; Petrie v. Williams, 68 Hun, 589.) The bicycle not being' a necessity, the contract under which it was purchased being, executory, the wheel having been returned to the vendor, and the contract rescinded before the period fixed for the performance of the contract, the question arises whether the infant may recover the amount which she paid on the contract, without diminution for the use of.the machine or for damages thereto occasioned by its use.
A witness sworn in behalf of the defendant testified that the fair rental value of the wheel for three months was thirty dollars; and that,, by, reason of the condition in which it was returned, it was worth fifteen dollars less than when it was delivered to the plaintiff. In Pyne v. Wood (supra) the infant returned the bicycle after using it some ■ months, and it was held that he was entitled to recover the amount paid on the contract. ■ McCarthy v. Henderson (138 Mass. 310) arose out of a contract with an infant for the purchase of - a “ curtain side barge ” which he used in his business of transporting passengers. By the contract the infant agreed to pay $50 per month for the use of thébargé and the vendor agreed that, when the infant should pay $675, the title should pass to the vendee. The infant paid $175 and used the. barge four months' when the vendor took possession of it because of the infant’s failure to make the stipulated payments. The infant sued 'to recover the amount paid because of his infancy, and it was held that he was entitled tO' recover the full amount without deducting the value of the use. of the barge during four months.
The learned counsel for the defendant cites in opposition to these authorities: Gray v. Lessington (2 Bosw. 257); Bartholomew v. Finnemore (17 Barb. 428); Crummey v. Mills (40 Hun, 370); *391Hangen v. Hachmeister (17 J. & S. 34); Wheeler & Wilson Mfg. Co. v. Jacobs (2 Misc. Rep. 236). In the cases in which it was held that the infants must restore or make good all they had received under the contracts, the judgments were placed upon the ground that the contracts were executed, and that the rule which prevails as to executory contracts was not applicable to executed contracts. In the case last cited the vendor brought replevin against the infant purchaser because of his failure to pay for the machine purchased. It was held that the action was not founded on the contract, was a tortious one, and that the sums paid could not, for that reason and for the further reason tha't the contract was executed, be counterclaimed. Such were the reasons’ given although they do not seem to lit the facts, and they are far from satisfactory or logical.
In Crummey v. Mills (supra) the plaintiff did not part with his own property, but with the property of his mother. After the plaintiff became of age he repudiated the transaction and brought an action to recover his mother’s stock put up as collateral to his contract, which stock was never owned by him, and it was held that he could not recover the value of his mother’s stock put up as a margin. It was not asserted that the plaintiff ever had title to the shares, or that his mother had ever assigned her right of action to him. On this ground the judgment firmly rests.
In Hangen v. Hachmeister (*supra) an infant, in the course of his business, mortgaged his chattels. The infant died and his personal representative sold the mortgaged property to the plaintiff, who had notice that the defendant held a mortgage thei;eon. The infant never repudiated the chattel mortgage, neither did his representative, and it was held that the purchaser from the representative could not repudiate the infant’s contract, and was not ’ entitled to recover the value of the property in an action for its conversion against the mortgagee in possession.
In Bartholomew v. Finnemore (supra) an infant exchanged a promissory note for thirty dollars, a bank note for five dollars, and a wagon, for a horse. The infant was twenty years of age-, was in business for himself, and his father was present when the exchange was made, approved of it, and indorsed the note which was given in exchange. The infant kept the horse a month, returned it and *392demanded the property which he had given in exchange. The defendant refused to accept the horse or return the property. The infant sought to recover the value of the property in an action of trover. The case was tried in a Justice’s Court, where a verdict and judgment were rendered for the defendant^ but the judgment was reversed by a County Court. On the plaintiff’s appeal the judgment' of the County Court was reversed and the judgment of the Justice’s Court affirmed upon two grounds: (1) That the contract was made witli the approval of the natural guardian of the infant, his father, and (2) that the contract having been completely executed the infant could not recover the value of the articles which he exchanged without restoring the horse in as good condition as when he took it. It-was shown on the trial that the horse, by misuse, was greatly depreciated in the infant’s hands before it was tendered to the defendant. Hone of these cases are decisive of the case at bar.
In Green v. Green [69 N. Y. 553) an infant conveyed his real estate, received the consideration and squandered it. Upon arriving at age he brought an action of trespass against the vendee for entering on the land, and it was held' that he could recover without making restitution, as it appeared that he had squandered the money, and, therefore, it was impossible for him to return it.
In Allen v. Lardner (78 Hun, 603) an infant who owned a building lot, and was engaged to be married, contracted for the erection of a dwelling thereon for $.887. The house was built, and it Was ■conceded that it was worth the contract price, and suitable for the home of the infant'and his wife, who occupied it for some time and afterwards leased it. They gave a bond and mortgage for the contract price, which, when they became of age, they repudiated on the' ground that they were infants when executed.. In an action brought for the foreclosure of the mortgage it was held that it was not a lien upon the property, and a judgment was rendered for the defendants.'
In Kane v. Kane (13 App. Div. 544) an infant mortgaged his lands, received and squandered the money. After he became of age he disaffirmed the mortgages, and it was held that they were not a lien on the infant’s land, and that the restitution of the consideration of the mortgages was not a necessary condition precedent to the effectual disaffirmance of them.
It is apparent that, under the authorities, the vendor in the case *393at bar could not have maintained an action against the infant vendee for the purchase price of the wheel, or for the use thereof or for damages not willfully inflicted but occasioned by the use of the wheel. • It is difficult to see, as was said in McCarthy v. Henderson (supra), that the vendor is any more entitled to recover by way of counterclaim on such a cause of action than he would have been had he brought an action. Experience has shown .that it is necessary to enforce these rules for the protection of infants and incompetents in order to jnotect them from being defrauded of their estates, and while they -work occasional injustice they are necessary for the protection of such persons.
In England, by a recent statute (“ Infant’s Belief Act,” 37 & 38 "Viet. cha]D. 62), it is enacted that contracts entered into by infants for money borrowed and for various purchases are void and cannot be validated after the infant has arrived at full age. If it shall be held that infants or incompetents must make restitution before actions can be maintained for the recovery of their property, their estates will be exposed to depletion by unprincipled persons. A vendor who sells on the installment plan a bicycle to a girl seventeen years of age, employed as a domestic, should be content to stand on his strict legal rights.
The judgment should be reversed, with costs.
Hardin, P. J., and Green, J., concurred; Adams and Ward, JJ., dissented. '