(concurring specially). The circuit court directed a verdict for plaintiff in this case and rendered judgment against the defendant on his note. Defendant’s counterclaim for recovery of the $400 down payment was dismissed. Defendant then appealed to this court and assigned as error the granting of the motion for directed verdict and the dismissal of the counterclaim. This placed in issue before this court the grounds upon which the motion for a directed verdict was based. These grounds are: First, that the evidence is insufficient to show defendant’s disaffirmance of the contract. Second, that defendant, a minor over eighteen years of age, has failed to prove that he has restored the damage caused by the upset on the highway. Third, that the machine depreciated in value because of its use by the minor, and that the minor has not offered to restore this damage.
The circuit court must have decided that the minor had not disaffirmed the contract because it is only on this premise that the judgment could have been entered for the vendor on the note, and the recovery of the down payment by the minor denied. By the entry of judgment against the minor on the note, the court enforced the minor’s contract.
The minor testified that both before and after the commencement of the action he stated to the vendor that he wanted to return the machine and that the vendor refused to accept it, and this was not denied. The minor made the same offer in his pleadings and on the witness stand. The allegations of infancy and disaffirmance are included in the *258minor’s answer. This is sufficient to constitute disaffirmance of the contract, 43 C.J.S., Infants, § 75d. Thereafter the contract of the minor was void ab initio and no valid judgment could be entered thereon.
On the issue of damages the vendor alleged in his pleadings that the machine was upset on the highway and damaged while in the minor’s possession, and that the damages resulting from such upset have not been restored by the min- or. The vendor urges that such restoration is a condition precedent to disaffirmance of the contract. The fundamental principles regarding disaffirmance are well established. First, a minor’s contract is void ab initio upon disaffirmance whether the minor was over or under the age of eighteen years when the contract was made. 43 C.J.S., Infants, § 75f; LeBaron v. Berryessa Cattle Co., 78 Cal.App. 536, 248 P. 779; Leonard v. Tulsa Building and Loan Ass’n, 184 Okl. 558, 88 P.2d 875. Second, specific property in the minor’s possession and which came to him under contract must, upon disaffirmance, be returned to the vendor. Shutter v. Fudge, 108 Conn. 528, 143 A. 896. Third, Upon such redelivery the minor is entitled to the return of the consideration therefor, or its value. Schoenung v. Gallet, 206 Wis. 52, 238 N.W. 852, 78 A.L.R. 387.
Restoration is a duty which the statute imposes upon the minor who was over eighteen years of age when the contract was made, and one which the courts recognize and enforce, but not as a limitation upon the statutory and common law right of a minor to disaffirm his contracts. So far as this case is concerned the undisputed evidence shows that the machine was repaired after the accident and placed in as good condition as before so far as damages by the accident are concerned. This issue was abandoned by the vendor at the trial.
The next issue presented on this appeal relates to depreciation from ordinary use. Though it was a secondhand machine when the minor bought it, he used it some during several months before the commencement of this action, which use may or may not have caused depreciation of it. However, there is no evidence of the extent of the use nor *259of depreciation from use and no evidence of the value of the machine at the time of the trial.
In the absence of competent evidence to prove the depreciation there was no basis for finding that depreciation existed. It also appears that the vendor made no' claim in his pleadings for depreciation of the machine because of its use by the minor while it was in his possession. Neither did he introduce any evidence in support of any such claim. The record shows that at the trial the minor offered to show the extent of the use of the machine while in his possession, but to this offer the vendor objected and the objection was sustained. Upon the record as made -the right of the minor to restoration of his note and the recovery of the consideration paid is not affected in this action by any possible right of the vendor to allowance for depreciation or use of the machine by the minor. Schoenung v. Gallet, 206 Wis. 52, 238 N.W. 852, 78 A.L.R. 387.
The case is now in this position: The'judgment against the minor on the note is reversed and set aside on this appeal, and in this I concur. However, the reversal is not based on a disaffirmance of the contract. That issue has not been decided by this court. The judgment is reversed on the ground that the minor must allege and prove depreciation on the machine from ordinary use as a condition precedent to disaffirmance, and the case is remanded to the circuit court for the framing and trial of that issue. How then are the parties to proceed on a retrial? The minor may obtain a judgment of disaffirmance if he is willing to allege and prove depreciation, but the minor denies depreciation, and has no object in establishing an additional liability to the vendor. If the minor does assume the burden of proving depreciation, the vendor may resist this proceeding and defeat disaffirmance by assuming the position, and by attempting to prove, that the machine has not depreciated while in the minor’s possession, and it is in the interest of the vendor to do so because, so long as there is no disaffirmance of the contract, he is entitled to judgment on his note and need not refund the $400.
It seems to me that the court has erred on two propositions: First, in holding that determination of depreciation *260is a condition precedent to disaffirmance of a minor’s contract, and second, in holding that the burden of alleging and proving depreciation is on the minor.