#### W. C. HIGHT v. DAVID HARRIS.

(Filed 8 October, 1924.)

1. Infants — Contracts—Void Contracts.

Excepting' necessaries or contracts authorized by statute, an infant may avoid his contracts concerning personalty on account of his infancy, either during his minority or promptly upon coming of age, and recover the consideration he has paid thereon either in money or property, upon his *329restoring the consideration lie has received, if he then has it, or the value thereof in property in which he has invested it, which is still under his control and ownership.

2. Actions — Inconsistent Defenses.

Inconsistent defenses.may be set up in the same action, and a plea of infancy may be interposed to avoid a contract together with a counterclaim for breach of warranty therein.

3. Justice’s Courts — Appeal—Trial De Novo — Superior Courts — Pendency of Action.

Appeals from a justice’s court are tried (le novo in the Superior Court ; and where an appeal has thus been taken and consolidated with another action brought originally in the Superior Court, in both of which infancy is pleaded to avoid a contract for goods sold and delivered, and damages as a counterclaim for the breach of warranty in the sale of a mule, by not submitting an issue as to the damages for the breach of warranty set up before the justice of the peace, the counterclaim in that action is deemed to have been abandoned, and the right of the party plaintiff in the former action and the defendant in the latter is taken as waived when objection has not been aptly taken in time.

4. Actions — Pendency of Actions — Waiver.

Held,, upon the facts of this case, the place of the pendency of another action was waived by the party.

Civil actioet, tried before Lyon, J., at May Special Term, 1924, of Yaetce.

From a perusal of tbe record and case on appeal, it appeared tbat in February, 1923, plaintiff, a merchant, sued tbe defendant, a minor, in a justice’s court, o-n_account for goods sold, amounting to $83.68 and interest. Defendant did not deny tbe account, but set up a counterclaim for $175.00 damages for breach of contract of warranty on sale of a mule by plaintiff to defendant in 1920. On the trial tbe justice entered judgment for tbe account, as claimed, and against defendant on tbe counterclaim, and defendant appealed to tbe Superior Court, where tbe cause was duly docketed.

Defendant, having become twenty-one, instituted against plaintiff an action in Superior Court to set aside sale of mule on account of infancy and on allegations of fraud and deceit, and to recover of plaintiff tbe purchase price of mule, $375.00, tendering tbe mule to plaintiff. This cause being also for trial on tbe. docket of tbe Superior Court, on motion it was consolidated with tbe cause appealed from tbe justice’s court, and defendant, appellant from tbe justice’s court judgment, not denying tbe account, and renewing and maintaining bis tender of tbe mule, tbe cause as consolidated was submitted and verdict rendered on tbe following issues:

Was tbe plaintiff, David Harris, a minor, under tbe age of twenty-one, at tbe time of tbe purchase of tbe mule for $375 from tbe defendant, W. C. Hight? Answer: Yes.

*330Is tbe defendant, David Harris, indebted to tbe plaintiff, ~W. C. Higbt, in tbe sum of $83.68, witb interest from.l September, 1920? Answer: Yes.

When did tbe plaintiff, David Harris, arrive at tbe age of twenty-one years ? Answer: 22 August, 1923.

On tbe verdict, judgment was rendered as follows:

Tbis cause coming on to be beard at tbis special term of tbe Superior Court, beld, beginning 5 May, 1924, and being beard before bis Honor, C. C. Lyon, judge presiding, and a jury, and tbe jury having answered tbe issues as appears of record:

Now, therefore, on motion of Kittrell & Kittrell and Jasper B. Hicks, attorneys for plaintiff, David Harris, it is ordered, adjudged and decreed that tbe contract of purchase and sale of a mule between ~W. C. Higbt and David Harris is declared and adjudged to be null and void, and tbe plaintiff, David Harris, is ordered to return tbe mule to W. C. Higbt when tbis judgment has been paid him; and tbe defendant, W. C. Higbt, is liable to David Harris for tbe $315, being tbe price paid for said mule, less tbe sum of $83.68, witb interest from 1 September, 1920, amounting to $18.40, which leaves tbe amount due by W. 0. Higbt to David Harris $272.92; and it is ordered that tbe plaintiff, David Harris, therefore recover of tbe defendant, W. 0. Higbt, tbe sum of $272.92, witb interest from tbis date, and tbe costs of tbis action.

Tbis 13 May, 1924. C. C. LyoN, Judge Presiding.

From which judgment plaintiff, W. 0. Higbt, appealed.

T. T. Hides & Son for plaintiff, appellant.

Kittrell & Kittrell for defendant; appellee.

Hoke, C. J.

It is recognized in this jurisdiction that, except in case of necessaries or contracts authorized by statute, an infant may avoid his contracts concerning personalty on account of his infancy; and, either during his minority or on coming of age, if be acts promptly in the matter and on such avoidance, be may recover the consideration paid by him, either in money or property, with the limitation that be must restore the consideration received if be still has the same in band, or return or account for the value of property in which it has been invested and which is still under his control and ownership. Morris Plan Co. v. Palmer, 185 N. C., p. 108; Chandler v. Jones, 172 N. C., p. 569; Skinner v. Maxwell, 66 N. C., p. 45; Ex parte McFerrin, 184 Ala., p. 223; Gullis v. Goodwin, 180 Mass., p. 140; 14 R. C. L., title Infancy, secs. 20, 21, 22, 23.

*331In the well-considered case of Bank v. Palmer, supra, Associate Justice Adams states tbe principle as it prevails witb ns, as follows : “Omitting reference to contracts for necessaries, and to sucb contracts as a minor is authorized by statute to make, tbe Court bas beld that an infant may, during bis minority, avoid bis contract relating to personal property, and tbat sucb avoidance, wben effected, is irrevocable and renders tbe contract null and void ah initio.” And again: “Tbis doctrine is established. It is approved and maintained witb practical unanimity; and while tbe infant’s right to disaffirm bis contract may sometimes be exercised to tbe injury of tbe other party, tbe right, nevertheless, exists for tbe protection of tbe infant against bis own improvidence, and may be exercised entirely in bis discretion. 1 Elliott on Contracts, sec. 302; 3 Page on Contracts, sec. 1593; Dibble v. Jones, 58 N. C., p. 389.”

Tbe cause below seems to have been tried and determined in accord witb these positions, and we find no valid reason for disturbing tbe result.

It is chiefly urged for the appellant tbat the appellee should not have been allowed to insist on an avoidance of the contract for the purchase of the mule, as claimed in bis action instituted in the Superior Court while there was a counterclaim presented by him on bis appeal from the justice’s court for a breach of warranty in the sale. To tbis objection it might well be answered tbat, under our system of procedure, a party is allowed to submit inconsistent pleas, and tbat in these actions, consolidated by order of court, the defendant Harris might well be allowed to plead tbat be was an infant at the time of sale, and, failing in tbat, tbat there was a breach of warranty in the sale. C. S., 522, citing Upton v. R. R., 128 N. C., p. 173; McLamb v. McPhail, 126 N. C., p. 218; Higson v. Ins. Co., 152 N. C., p. 206; Ten Broeck v. Orchard, 79 N. C., p. 518. See, also, Johnson v. Lumber Co., 147 N. C., pp. 249-252. On the facts of tbis record, however, the complete answer to tbis objection is tbat, on appeal from the justice’s court, the matters there determined" were, under our procedure, to be tried de novo; and in tendering and submitting only the issues presented by defendant’s action to set aside the contract by reason of infancy, the counterclaim for breach of warranty set up in the justice’s court should be treated as abandoned or withdrawn by appellee. Under our decisions, it was open to appellee to do tbis at any time before the final bearing. Barnett v. Mills, 167 N. C., pp. 576-584; Cook v. Cook, 159 N. C., pp. 47-50.

Speaking to tbe question in Cook’s case, supra, tbe Court said: “As a general rule, tbis right to plead tbe pendency of another action between tbe same parties before judgment bad is regarded to a large *332extent as a rule of convenience, resting on the principle embodied in the maxim, 'Nemo debet bis vexari.’ The defect is one that can be waived, and it may also be cured by dismissing the prior action at any time before the hearing.” Citing Grubbs v. Ferguson, 136 N. C., p. 60; 1st Cyc., p. 25.

We find no reversible error in the record, and the judgment below is affirmed.

No error.