This action is brought to recover damages for false and fraudulent representations made on the sale of a mare. The defense is, first, a denial of the false representations, and, secondly, the infancy of the defendant.
The complaint uses the language “ warranted and represented,” but it distinctly charges falsehood and fraud, and intention to defraud, in this warranty and representation. It is, then, an action to recover damages for the alleged fraud perpetrated to induce the plaintiff to enter into a contract.
There is no doubt that an infant is liable for his torts not connected with contracts, and that he is not liable for mere contracts unconnected with torts. But there is a class of cases where some tortious act enters into, or is connected with, the making of the contract. In respect to these, the line of decisions is not at the first glance apparently uniform.
Of these cases the following are cited by the plaintiff to sustain his view:
*563Robbins v. Mount (33 How., 24). In that case the defendants were not held hable, and nothing was decided as to infants. The injury was alleged to have arisen from some negligence or carelessness in a building, by which water ran upon rooms occupied by the plaintiff.
In Eckstein v. Frank (1 Daly, 334), it was held that where’ an infant obtains property upon representations that he was of full age, he is hable, in an action of tort, brought either to recover the property bach or to recover damages.
In Wallace v. Morss (5 Hill, 391), an infant was held hable for obtaining goods fraudulently with intent not to pay.
Campbell v. Stakes (2 Wend., 137), was an action for misusing a horse hired by the defendant, an infant.
Studwell v. Shapter (54 N. Y., 249), held that in an action for the price of goods sold and delivered to an infant he could not be made hable by reason of fraudulent representations as to his credit.
Bullock v. Babcock (3 Wend., 391) and Conklin v. Thompson (29 Barb., 218) are cases of actual tort not connected with contract.
It will be seen that in none of these cases was the infant held hable where the tort was connected with a contract, unless the contract was disaffirmed by the plaintiff. In Eckstein v. Frank the ground of recovery was said to be that the defendant had obtained the property wrongfully. The plaintiff disaffirmed by suing, either for the property or for damages, and by not suing on the contract. In Wallace v. Morss the plaintiff disaffirmed, treating the transaction as a tortj not as a contract. In Studwell v. Shapter the court reversed the judgment for the plaintiff, saying that the action was founded on contract, and not based on fraud in disaffirmance of it.
This present action is not brought in disaffirmance of the contract. If the contract should be disaffirmed the plaintiff would have no title to the mare. But he kept the mare and thus affirms the contract, and asks damages for the fraud connected therewith.
In Moore v. Eastman (8 N. Y. S. C. [1 Hun], 578), an infant had hired a horse. The horse was taken sick, and the infant, against the advice of the doctor and the hotel-keeper, drove the horse. From the effects of such driving the horse died. The court held that, if the acts of the infant had been malicious or willful he would have been liable ; if, they were only unskillful, he would not. That there *564must be a tort independent of the contract. Although that case is not quite analogous to the present, yet the principle is similar, and the authorities there cited and approved apply directly. Prominent among these is Green v. Greenbank (2 Marshall, 485 ; S. C., 4 Eng. C. L. R., 375), where it was held that an infant was not liable for an action for falsely and fraudulently deceiving the plaintiff in an exchange of horses, because the deceit was practiced in the course of the contract. This same view is recognized in People v. Kendall (25 Wend., 399), and in Munger v. Hess (28 Barb., 75).
The general rule is laid down in Kent: “ The fraudulent act to charge him must be wholly tortious; and a matter arising ex cora tractu, though infected with fraud, cannot be changed into a tort in order to charge the infant in trover or case by a change of the form of the action.” (2 Kent, 241.)
So it is held that infancy is a good defense to an action on the case for deceit and false warranty in the sale of goods. The false representations are a part of the contract. (Prescott v. Norris, 32 New Hamp., 101.)
Again, infancy is a good bar to an action founded on a false and fraudulent warranty upon the sale of a horse, whether such action be in form ex contracta or ex deUcto. ( West v. Moore, 14 Vt., 447, Morrill v. Aden, 19 Vt., 505.)
To the same effect is Wilt v. Welsh (6 Watts, 1), which contains a full examination of the cases, and holds that where the substantive ground of the action is contract, as well as where the contract is stated as inducement to alleged tort, infancy is a defense. So, too, Studwell v. Shapter (ut supra).
This, too, is the doctrine stated in Tyler on Infancy. (§ 124, p. 128.) And this view makes all the cases consistent with each other. Thus, if an infant, by fraud, obtains property, with no intention of paying, though it he under the pretense of a contract of purchase, the defrauded party may recover. He does so on the ground that there was no real contract, and he disaffirms the apparent contract. On the same ground those cases must stand which have permitted a recovery for damages when an infant, to obtain goods, has fraudulently pretended that he was of full age.
On the same principle, if a party has been induced to purchase property from an infant, by the infant’s fraud and misrepresentation, *565it would seem that he might, on discovering the fraud, disaffirm the contract, return, or offer to return the property, and thus put the infant in the position of a mere wrong-doer, unjustly keeping what he had fraudulently obtained. And it would seem that the infant would then be liable in damages for tort.
But where, as in the present casej-the aggrieved party retains the benefit of the contract, he does not disaffirm it. His action there rests on the ground that he has made a contract, and it is necessary for his recovery that he should show that a binding contract has been made. Here, then, infancy becomes a defense. The defendant says there has been no binding contract; no action, therefore, lies for fraud in respect to a contract which he could not make. The alleged contract is the substantive ground of, or the inducement to, the cause of action; for, if there was no contract, then there could be no fraud in the making of it, and disproving the contract defeats the action. Therefore, as decided in all the cases above cited, infancy is a bar.
From these views it follows that the verdict must be set aside and a new trial granted, costs to abide the event.
And further, that the order denying the motion to vacate the order of arrest must be reversed, with ten dollars costs and printing, and such order of arrest vacated, with ten dollars costs.
Present — ■ Leakned, P. J., Bockes and Boakdman, JJ.New trial granted; costs to abide event; order denying motion to vacate order of arrest reversed, with ten dollars cost and printing; and order of arrest vacated, with ten dollars costs.