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GINDIN v. SILVER (07/01/68)

decided: July 1, 1968.

GINDIN
v.
SILVER, APPELLANT



Appeal from judgment of County Court of Philadelphia, Sept. T., 1964, No. 1624D, in case of David Gindin v. Martin Silver, guardian of Renee Silver, minor.

COUNSEL

Peter P. Zion, for appellant.

No argument was made nor brief submitted for appellee.

Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Cohen. Mr. Justice Roberts concurs in the result. Mr. Chief Justice Bell, Mr. Justice Musmanno and Mr. Justice Jones dissent.

Author: Cohen

[ 430 Pa. Page 410]

This is an appeal from a decree in equity ordering appellant to return an engagement ring given her by appellee in contemplation of their marriage. At the time of the gift, as well as at the time of the institution of the present action, appellant was a minor.

The first question presented for our determination is whether or not appellee is barred from recovering the engagement ring either in an action at law or in equity because the donee of the ring was a minor at the time of the gift. Appellant relies almost exclusively upon Yubas v. Witaskis, 95 Pa. Superior Ct. 296 (1929), wherein the Superior Court denied recovery against the donee in an action instituted by a bill in equity. In denying the relief requested the court reasoned as follows: ". . . When one parts with his goods under a contract with a minor, he may disaffirm the contract and bring replevin to recover possession of his property: Neff v. Landis, 110 Pa. 204. Rice, P. J., said in Spangler Co. v. Haupt, . . . 'The right to replevy the goods so long as they remain in the possession or under the control of the infant, does not necessarily imply a right to enforce the infant's contract.' As stated by Judge Trexler in Kay v. Haupt, 63 Pa. Superior Ct. 16, 'It is true that under the replevin act when the plaintiff does not get possession, he is entitled to the value of the goods and in this respect the nature of the action is changed. But if we were to allow a recovery by the plaintiff, we would merely be affording a means to collect a debt by reason of a change in the form of action and this would render the defendant liable for that which he, under the law, could repudiate when he became of age. Any one contracting with a minor, instead of bringing an action in assumpsit, against which nonage could be pleaded, could by merely changing his action to replevin obtain a judgment for his claim irrespective of the fact as to whether

[ 430 Pa. Page 411]

    defendant was in possession of the goods or not. . . .' Doubtless counsel for the plaintiff realized that as the defendant in the present case had parted with the ring, it could not have been recovered by an action of replevin. We cannot regard the present form of action as other than an attempt to accomplish by a suit in equity that which could not be done by assumpsit or replevin. . . ."

The lower court distinguished Yubas from the instant situation on the basis that here the donee still had possession of the ring and had that fact existed in Yubas, the Superior Court would then have permitted recovery. It is our view that the question of the existence or absence of possession in no way entitles appellee to the relief requested in an action in equity. However, we hasten to indicate that had this action been instituted by way of replevin proceedings, recovery of the ring would have been proper assuming the donee still had possession of the ring. To this extent, the law in this Commonwealth is sufficiently clear. Yubas v. Witaskis, supra; Neff v. Landis, 110 Pa. 204, 1 Atl. 177 (1885); Spangler Co. v. Haupt, 53 Pa. Superior Ct. 545 (1913). In fact, in other jurisdictions where the same question has arisen, it has been uniformly held that a gift to a minor in contemplation of marriage may be recovered when the infant breaks the agreement to marry and remains in possession of the gift res. See McElroy v. Gay, 155 Fla. 856, 22 So. 2d 154 (1945); Benedict v. Flannery, 115 Misc. 627, 189 N.Y.S. 104 (1921), and cases cited in 24 A.L.R. 2d 599. On the other hand, the law in this Commonwealth as well as in most jurisdictions denies recovery only in the event that the donee in good faith had already disposed of the property. See 24 A.L.R. 2d 599.

On the issue of whether equity has the power to afford the relief requested, i.e., the return of the ring, appellant urges that if any cause of action exists under

[ 430 Pa. Page 412]

    these facts and circumstances, it is not in equity because appellee has an adequate remedy at law. As previously indicated, we agree that equity does not lie in this case. Appellee seeks to justify resort to equity on three independent grounds: (1) that the diamond engagement ring is so unique and unusual it cannot easily or readily be obtained elsewhere; (2) it has a great deal of sentimental value and (3) if replevin proceedings had been instituted in the first instance, appellant could have entered a bond, sold or otherwise disposed of the ring ...


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