Plaintiff, the respondent here, brought this action to recover on a $1,000 promissory note given him by defendant as part payment on the price of a spraying machine used for spraying or dipping livestock. In his answer defendant, who brought this appeal, alleged that he was only 18 years old at the time of making the note and that he had “disaffirmed” the contract “by tendering and offering to return the said ‘Spray Dip’ and he counterclaimed for the $400 paid on the price at the time of the purchase. It is our opinion that it was error for the circuit court to direct a verdict for the plaintiff.
The evidence discloses: that appellant was only 18 when he bought the equipment; that he paid $1,400 for it, $400 down and gave the note in addition; that about 9 months after the purchase and after the note matured he went to respondent and told him he “wanted to give the machine back in just as good condition” as when he got it, and respondent refused to accept it; that the machine had been used when he bought it; that appellant had used it, upset it on the highway and had repairs made. Appellant’s father testified the equipment was as good when the offer to return was made as when his son bought it. The repairman testified it was “very close” to as good condition after he completed the repairs as before the upset. The record shows no rebuttal evidence on the condition of the machine as respondent’s motion for a directed verdict came at the end of appellant’s case and was granted. The grounds stated in the motion were: (1) that there had been no act establishing a disaffirmance of the contract; (2) that there had been no offer of full restoration to respondent of the consideration appellant received in the transaction in that the machine having been used and damaged could not possibly be *256as good as when purchased; and (3) that there had been no offer to restore the value of this deterioration.
Nowhere in appellant’s, answer or counterclaim nor in his proof is there a specific offer to make restoration as to the deterioration or depreciation in value during the time the machine was used by appellant. The allegations of the pleading and the proof as well relate only to offers to return the machine. It is not in dispute however that respondent had received and retained the $400 on the price.
It is our opinion that appellant, being a minor over 18 years of age, has a right to disaffirm his contract but that he is liable under SDC. 43.0105 for the depreciation and deterioration of the equipment while it was retained by him. LeBaron v. Berryessa Cattle Co., 78 Cal.App. 536, 248 P. 779. The trial court in directing a verdict apparently took the position that the minor must either pay the amount of the depreciation to the seller or offer to so pay before he had any standing in court. Applying the rules relating to rescission of contracts this position of the trial court was perhaps correct; it is our view however that in cases involving the contracts of minors a liberal rule should apply. In this type of action, whether one brought by the minor or one, such as this, where the minor after being sued at law upon the contract, pleads minority and disaffirmance as a defense, we believe the court should treat the proceeding as one seeking disaffirmance, and as a condition to the entry of judgment in favor of a minor over 18 should in each instance require the minor to do equity as a prerequisite to disaffirmance. Careful preparation of pleadings would involve allegations either of an offer to do equity or to make full restoration for depreciation, if any, in value. Such allegations here would have clarified the issues.
Appellant offered to return the property he received. He took the position that the machine was in as good condition when he offered to return it as when he received it. Respondent having received and retained the $400 down payment took the position the machine had been damaged and deteriorated to such extent it was substantially reduced in value or even valueless for the purpose intended, and that the offer to return it was not an offer to restore the consider*257ation. Under this record the trial court should have required the plaintiff to go forward with evidence on the issue of depreciation. Murdock v. Fisher Finance Corp., 79 Cal.App. 787, 251 P. 319. If depreciation is found the court should make proper provision for the amount thereof as a condition to entry of judgment based upon a disaffirmance of the contract by the minor. Starr v. Watkins, 78 Neb. 610, 111 N.W. 363. It follows that it was error to direct a verdict.
The judgment of the circuit court is reversed.
ROBERTS, RUDOLPH and SMITH, JJ., concur. SICKEL, P. J. concurs specially.