Whyte v. Rosencrantz

Citations

• 123 Cal. 634
• 56 P. 436
• 1899 Cal. LEXIS 1130

Syllabus

<p>Money Had and Received—Void Contract with Minor.—An action for money had and received will lie against one who has attained the age of majority, to whom the money claimed was loaned during his minority when over eighteen, under a parol agreement that he would upon becoming of age convey his interest in certain real estate as security for the loan, which agreement he refused to perform upon becoming of age. The void feature of the transaction does not preclude a recovery, it being inequitable for the defendant, under the circumstances, to retain the money.</p> <p>Id.—Action by Assignee—Consistency oe Pleading—Attempted Substitution of Note—Nondelivery—Nonacceptance—Offer of Return.—In an action of assumpsit by an assignee of the right to recover the money loaned to the minor, where it appeared that the defendant had obtained possession of the original notes given for the loan, under promise that the contemplated security would be given, and after having marked them paid without authority from the payee attempted to deliver to the payor a substituted note payable eleven months after date, and upon refusal of the payee to accept it, left it upon a table in the payee’s presence, who indorsed it merely to allow the assignee to produce it at the trial, the fact that the complaint by the assignee, under the circumstances, denies that the substituted note was delivered or accepted, and yet offers to return it with the payee’s indorsement thereon, does not render the complaint inconsistent, or felo de se.</p> <p>Id.—Loan to Minor over Eighteen—Restoration—Identity of Money. Under section 35 of the Civil Code, where money was loaned to a minor over eighteen years upon specified conditions which ' are disaffirmed when he becomes of age, the money loaned must be restored, “or its equivalent paid,” and it is not essential in such case in this state, that there should be ability to restore the identical money received, in order to sustain an action against him for money had an