Clapp, Goldmann and Ewart. The opinion of the court was delivered by Goldmann, J.A.D.
Defendant appeals from a judgment of $1,000 and costs entered in the Hudson County District Court in favor of plaintiff. No stenographic record having been made, the matter is before us on a statement of evidence settled and approved by the district court judge pursuant to R.R. 1:6-3 (formerly Rule 1:2-23), made applicable to this court by R.R. 2:6.
Plaintiff sued on a demand note in the sum of $960.92, executed by defendant on September 29, 1952 and payable to plaintiff's order at the rate of $8 each week. The defense was infancy. The reply was a denial, or in the alternative, should infancy be established, that defendant misrepresented his age to be that of an adult and plaintiff relied thereon by reason of his appearance, conduct and statements, to its detriment. At the trial defendant denied all legal liability even though he had signed the note, and relied on the fact
that he had received no personal benefit or consideration for his undertaking.
Plaintiff was assignee of certain claims for merchandise sold to one Florence Branda over a period of years and on which she owed $960.62. When it threatened suit Miss Branda suggested to McCaig, its credit manager, that she be allowed to make periodic payments. McCaig agreed to the arrangement, but only upon condition that she get someone to guarantee the debt. She persuaded defendant, whom she had known for only a few weeks, to do so. The three met on September 29, 1952. Before defendant signed the note McCaig told him of Miss Branda's obligation and plaintiff's agreement not to sue. McCaig also asked for and wrote down the information appearing in the confidential credit application admitted in evidence. Defendant admits he was asked his name, address, length of residence, phone number, name and address of his employer, and how long he had been employed. He denied having been asked his age, but McCaig testified that the question was put and defendant had answered he was 21 years old. McCaig also stated that defendant appeared to him to be an adult. He testified on cross-examination that he was not sure whether he had asked defendant for any proof as to his age, but believed he had asked him for his driver's license. McCaig further testified defendant had not received any money or personal property in return for his signing the note, nor had Miss Branda. He denied, in contradiction of defendant's testimony, that he had said that if defendant did not sign the note he would put Miss Branda in jail, or that he had told defendant he would not be called upon to make payments if Miss Branda defaulted. Miss Branda substantiated McCaig's testimony in all respects except that she did not recall his threatening her with jail. She specifically recalled McCaig's asking defendant if he was 21 years old and being told he was.
Miss Branda made only two $8 payments in reduction of her debt, on September 29 and November 5, 1952. Defendant made none.
The district court judge found as a fact that defendant had deliberately misstated his age in order to induce plaintiff not to sue Miss Branda, that it relied on this misrepresentation, that defendant appeared to be an adult, and that he was estopped from setting up the defense of infancy, citing LaRosa v. Nichols , 92 N.J.L. 375, 6 A.L.R. 412 (E. & A. 1918). On the question of consideration, the judge found that defendant signed the note and delivered it to plaintiff upon its promise to forbear from suing Miss Branda, that it kept its promise and instituted no action against her, that defendant received and retained a benefit and should therefore be precluded from setting up the defense of infancy. The court thereupon entered the judgment here under attack.
Defendant was 20 years, 9 months and 2 days old at the time he executed the note. He was 21 years, 3 months and 4 days old when this action was instituted. The record supports the finding below that defendant deliberately misrepresented his age and that plaintiff relied on the misstatement. The trial judge was in a position to observe for himself whether defendant, only a few months older than when he signed the note, had the adult appearance to which McCaig testified. We give full weight to the court's findings that defendant did have that appearance.
Defendant contends that at common law and by the preponderance of American authority an infant is not estopped from setting up his infancy as a defense to an action on a contract, even though he induced the other party to enter into the contract by falsely representing himself to be of age. It is generally true that an infant may avoid his contract. R.J. Goerke v. Nicolson , 5 N.J. Super. 412 (App. Div. 1949); 1 Williston on Contracts (rev. ed. 1936), § 226, p. 677. However, in LaRosa v. Nichols , 92 N.J.L. 375 (1918), the Court of Errors and Appeals held there is an exception to that general rule; in a proper case an infant may be estopped from asserting infancy as a defense. Chancellor Walker, speaking for the court, said (at p. 380):
"As applied to the facts in the case at bar, the law, as I view it, is, that if a youth under twenty-one years of age, by falsely representing himself to be an adult, which he appears to be, for the purpose of inducing another to enter into a contract with him, and, thereby, through such representation and appearance the other party is led to believe that such infant is an adult, and makes a contract with him, the benefit of which he obtains and retains, then, in a suit on that contract, the minor will not be permitted to set up the privilege of ...