ARK.] FOREMAN V. DICKINSON. ' 1.21 FOREMAN V. DICKINSON. Opinion delivered May 7, 1928. 1.. EVIDENCE—DATE OF BIRTH.—The date of a person!S birth may be testified to by himself or by members of his family. 2. INFANTS—RIGHT TO DISAFFIRM CONTRACT.—An infant is not estopped by his misrepresentations as to his age to avail himself of the right to disaffirm his contract. 3. INnt-N TS— SUFFICIENCY OF EVIDENCE AS TO MINORITY.--:A preponderance of the evidence held to establish that defendant was an infant when he disaffirmed a contract for the purchase of an automobile. 4. APPEAL AND IIRROR—SERVICE . op sumivioNs.—Where an aPpeal from a decree was taken on the day before the time for .appeal expired, but no summons was issued or served until two months thereafter, the appeal will he dismissed. - -5. APPEAL AND ERROR— APPBARANCE.—The fact that an attorney, who was defendant in the suit below, appeared for another of the defendants on plaintiff's appeal did not enter such attorney's . appearance; he not having been summoned within time. Appeal from Pulaski Chancery Court; Frank H. Dodge, Chancellor; reversed. • . STATEMENT OF FACTS. J. A. DickinsOn, trading as Gnlf Refining Company, filed an amended coniplaint.in 'the chancery court -against Herbert . Foreman, Frank Strangways and W. :}1 : Strang-ways, to recover a balance due on a note in the sum of $352.60, and asked that the same be -declared a lien.on an automobile sold to Herbert'Foreman. The, defendants filed an answer in which -they disaffirmed the COE-\ tract for the purchase of the automObile on the- ground that Herbert Foreman is a minor, and they ask that the Little Rock Motor Car Company, from* which the autO-
199 FOREMAN V. DICKINSON. [177 mobile was purchased, be made a party defendant to the action, and that Herbert Foreman have judgment against it for the cash payment made when the automobile was purchased. They offered to tender the car back to the seller, and the record shows that the car is now in the hands of the plaintiff, J. A. Dickinson, for the purpose of being sold and the proceeds applied tci the satisfaction of the balance of the purchase money. The record shows that on June 7, 1926, H. F. Foreman made what is called a purchaser's statement to the Little Rock Motor Car Company in writing at its address in Little Rock, Arkansas. In his statement he represented himself to be twenty years old, and W. F. Strang-ways, his grandfather, as his nearest living relative. The statement also represented that the purchase price of the automobile and tbe terms of purchase were on the basis described in the promissory note attached. The statement is signed as follows: "Herbert Foreman, Frank Strangways (as indorser), W. F. Strangways, guardian, signs-to legalize Herbert Foreman's signature, • and is in no way responsible for carrying out the contract and is not responsible for any payment." The cash payment was $367.65. A note dated June 7, 1926, was given for $551.48, the balance of the purchase price. In the note appears the following: "Herbert Foreman's schedule of payments. Birthday, October 11, 1926, and twenty-one years old then." The note recites that the title to the automobile shall remain in the Little Rock Motor Car Company or assigns until the note and interest are fully paid. It further provides that, in event any installment is not paid when due, all of the installments shall at once become due and payable and that the seller of the automobile or the holder of the note may at once retake possession of the automobile and sell it at public or private sale without any legal procedure whatever. The note is signed, "Herbert Foreman, Frank Strangways (as indorser)." The note was duly assigned to J. A. Dickinson. Several payments were made by H. F. Foreman on the note. These payments amounted
ARK.] FOREMAN v. DICKINSON. 123 . • to $198.88 and left a balance due on November 24, 1926, of $352:60. . An employee of the Little Rock Motor Car Company testified that she made the sale of the car to Herbert Foreman, and •hat he represented that he would he twenty-one years of age in October, 1926. An .application for credit to another company signed by Herbert Foreman was also introduced in evidence, and in it he represented that he was twenty-one years of age on August 24, 1925: The trial of the case was had before the chancellor on the 24th day of June, 1927. Herbert Foreman was a witness. He admitted making the representations abbut his age as . they appeared in the statements above referred. to, but testified that he was born in •St. Francis County, Arkansas, on October 10, 1906. He said that he made the. false representations about his age at the instance of the- dealers. He stated that he knew his age • because he had looked in the family Bible where it was recorded and because he had been so told by his grandfather, Dr. W. F. Strangways, who attended his mother, at his birth. Dr. W. F. Strangways, grandfather of Herbert Foreman, was also a witness. According to his testimony Herbert Foreman was born, October 10, 1906, - at St. Francis, Arkansas. He was , practicing medicine there at the time and attended his daughter at the time she gave birth to Herbert Foreman. . He made the entry of Herbert's birth in the family Bible. Herbert Foreman has been partly bronght up by him, and he has a recollection of the date of his birth. He signed the contract . for the purchase of the automobile at the request of the \\\ seller, and it was definitely understood that he was in no • way responsible for carrying out the contract. Frank Stran•ways is an uncle of Herbert Foreman, .t and lived at St. Francis, Arkansas, at the time Herbert , Foreman was born. The witness recollects that Herbert I was •orn October 10, 1906. He signed the note as I ) \\I s, S } (
124 FOREMAN V. DICKINSON. [177 indorser, and it was not intended by the seller that he should be bound by the contract. The chancellor found that Herbert Foreman was a . minor, twenty years of age, when he executed the contract for the purchase . of the automobile, but that he attained his majority on. the 10th day of October, 1926, and after that time ratified the contract by making payments on the purchase •price - of the automobile and Tetaining it in his possession.. It was therefore adjudged and decreed that J. A. Dickinson recover from Herbert Foreman the .sum of $360.38 with accrued interest, and that the same should be declared a lien on the automobile in question. The decree proyided that, if the amount adjudged should not be paid . within ten days, the commissioner of the court should sell the automobile . and apply the proceeds towards .the payment of the amount found due. It was further decreed that the ratification of the contract by . Herbert Foreman Was not binding on the indôrser, Frank Strangways, and that J. A. Dickin-son should take nothing against the defendants, Frank Strangways and W. F. Strangways. ' Herbert Foreman. alone has prosecuted an appeal to this court. J.F.Wills and Frank Stranyways, for appellant. E. R. Parham, for appellee. HART, C. J., (after stating the facts). The decree of the chancery court was in favor of Frank Strangways and W. F. Strangways, and the record shows that they refused to join in this appeal, which is prosecuted alone by Herbert Foreman. Herbert Foreman, in his answer,. which was filed , on December '29, 1926, disaffirmed his contract for the purchase of the automobile. His dis-affirmance is placed on the ground that he was a minor at the time the contract was executed on the 7th day of June, 1926, and that he was still a minor at the time the answer was filed on December 29, 1926. The decree of the chancery court is based upon the theoiy that Herbert Foreman became of age on the 10th day of October, 1926. There is no testimony in the record to warrant such a finding except the negative tes-
ARK.] FOREMAN V. DICKINSON. 125 timony in the statements made by Herbert Foreman in his purchaser's statement and in' the repre . sentation he made to the salesman of the Little Rock Motor Car Company at the time he made application to purchase the car and in another statement be made to another- business firm with a view to purehasing goods from it. All the positive testimony in the record shows that . . Herbert ; Foreman was born-October 10, 1906, and .did not -become , .of age until October -10, 1927. Herbert Foreman testified that this was the date of his 'birth and that he had seen it recorded in the family Bible. His grandfather, 1 who was the phYsician who attended his mother •at the time of his -birth, testified that Foreman was' born Octo-ber 10, 1906, and that he recollected the (late of his- birth and that after his daughter's death he set down the age of her child in the family Bible. An uncle testified that he recollected that Herbert Foreman was born October 10, 1906. . . The date of a person's birth may be testified to by himself or by members of his family. This falls within , the rule admitting parol evidence in matters of pedigree, which includes birth, marriage - and death. Lincoln Reserve Life Ins. Co. v. Morgan, 126 Ark. 615, 191 S. W. 236. . . . This court has also held that an infant is not estopped by his misrepresentations as to- age- to avail himself of the right to disaffirm his contract. Arkansas Reo Motor Co. v. Goodlett, 163 Ark. 35, 258 S: W. 975. In this case it was alSo stated that an infant was; entitled - to. recover the price paid for an automobile purchased „ by her on returning the car although she had misrepresented her age to the seller, such article not constituting a "necessary" for an infant. . The chancellor was not juStified in holding that the \, positive tesamony of the witnesses in the recoyd as to the N age , of Herbert Foreman was overcome by his misrepre-\ sentations as to his age. - A preponderance of the evi-`; deuce clearly shows that Herbert Foreman did not become of age until October 10, 1.927, and that before this
.126 FOREMAN V. : DICKINSON: [177 time he had disaffirmed hiS contract for the purchase of the automobile. Indeed, the decree of the chancery court was rendered against him before he became of age. It follows that the decree must be reversed, and the. cause will be remanded with directions to the chancery court to render a decree dismissing the complaint of J. A. Dickinson against Herbert Foreman, and for further proceedings in accordance with the principles of equity, and not inconsistent with this opinion. It is so ordered.. orixioN ON REHEARING. HART, C. J. We cannot grant the request of counsel for appellees to consider the liability of Frank Strang-way sa.s indorser of the note of Herbert Foreman, for . the following reasons : The decree in favor of Frank Strangways was entered of record in . -the chancery court on . July 6, 1927. No appeal was taken from the decree in his favor by the Little Rock Motor . Car Company until January 5, 1928. The time for appeal expired- on the next day. No suinmons was issued until March 15, 1928. Summons was served Frank Strangways on that day ; and on April 30, 1928, he filed a motion to dismiSs the appeal against him. There was an unreasonably delay in the issuance and service of summons. Summons should ha.ve been issued -immediately and served within a reasonable time. Therefore we must dismiss the appeal of the Little. Rock Motor Car Company so far as Frank -Strangways is concerned. Claiborne v. Leonard, 88 Ark. 391, 114 S. W. 917, and Birmingham v: Rice, 90 • Ark. 306, 118 S. W. 1017. The fact that Frank Strangways appeared_as attor-. ney for Herbert Foreman did not enter his own appear-. ance to the appeal. It follows that the motion for a re-hearing must be denied.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.