By their failure in performance, no title to the motorcycles passed to the plaintiffs, and ordinarily all payments made on account of the purchase price would be forfeited. Chase v. Ingalls, 122 Mass. 381. Bailey v. Hervey, 135 Mass. 172. Smith v. Aldrich, 180 Mass. 367. But, as they were minors during the time covered by the contracts, each plaintiff seeks in the present actions to recover back the moneys paid.
The finding of the trial judge that the motorcycles were not necessaries is not assailed, and, notwithstanding the recital in each of the instruments, “that he is at least twenty-one years of age,” the plaintiffs even if the statements were false are not estopped i from disaffirmance. Merriam v. Cunningham, 11 Cush. 40. White v. New Bedford Cotton Waste Cory. 178 Mass. 20. Sims v. Everhardt, 102 U. S. 300. The contracts, therefore, even if treated as executed, can be avoided, and, if material, the motorcycles being in possession of the defendant, there is no consideration to be returned. Benson v. Tucker, 212 Mass. 60, 62.
It is true that recoupment is pleaded. The plaintiffs, however, are not liable in tort for deceit arising from false representations as to their age, or for damages to the machines while in their possession and used by them under the contract. Slayton v. Barry, 175 Mass. 513. Drude v. Curtis, 183 Mass. 317.
The defendant cites Walker v. Davis, 1 Gray, 506, where it was *56remarked that infancy is not a defence to a civil action for fraud. But Walker v. Davis, as pointed out by Lathrop, J., in Brooks v. Sawyer, 191 Mass. 151, 153, is disposed of by Drude v. Curtis, 183 Mass. 317.
It was said by Morton, J., in Gillis v. Goodwin, 180 Mass. 140, where the plaintiff, a minor, sued to recover certain sums paid under a contract for the conditional sale and purchase of a bicycle, “Whatever may be the law elsewhere ... it is settled in this State that a minor can avoid a contract like that in this case, and is not obliged to put the other party in statu quo or allow anything for the rent and use of the property while in his possession. Morse v. Ely, 154 Mass. 458. Pyne v. Wood, 145 Mass. 558. McCarthy v. Henderson, 138 Mass. 310. Dube v. Beaudry, 150 Mass. 448. Walsh v. Young, 110 Mass. 396. Chandler v. Simmons, 97 Mass. 508, 514.” We find nothing in the elaborate argument of the learned counsel for the defendant by which in principle the cases at bar can be distinguished.
It follows that the requests for rulings were denied properly, and, whether in the ICnudson case the defendant’s motion to recommit-I the report of the trial judge for amendment or amplification should ! have been allowed, was discretionary with the Appellate Division,
! whose general order dismissing the report is to be treated as a denial . of the motion. The entry in each case must be
Order dismissing report affirmed.