
78 A.2d 487 (1951)
LESNICK et al.
v.
PRATT.
No. 220.
Supreme Court of Vermont. Caledonia.
February 6, 1951.
Graves, Mehlman & Brown, St. Johnsbury, for plaintiff.
Ernest E. Goodrich, St. Johnsbury, for defendant.
Before SHERBURNE, C. J., and JEFFORDS, CLEARY, ADAMS, and BLACKMER, JJ.
CLEARY, Justice.
This is an action of tort for fraud and deceit involving the sale of an automobile to the plaintiffs by the defendant. The defendant pleaded infancy. Trial was by the court with judgment for the plaintiffs. Both parties excepted.
The findings of fact show that at the time of the sale on January 20, 1949, the defendant falsely and fraudulently represented that the automobile was fully paid for and was free of liens and encumbrances and on September 13, 1949, the plaintiffs were obliged to pay the balance owing on a conditional sale contract which the defendant had signed when he purchased the automobile on January 10, 1949. The defendant was born on July 29, 1928, so when he bought the automobile and when he sold it to the plaintiffs he was a minor.
Thus it is clear that the cause of action arises out of a contract and, as this Court said in West v. Moore, 14 Vt. 447, 450: "It is for us to declare the law as we find it." In that case, which was trespass on the case for false warranty in the sale of a horse, this Court held: "Though an infant is liable for positive wrongs, and constructive torts, or frauds, yet, to charge him, the fraudulent act must be wholly tortious. If the matter arises from contract, though the transaction is infected with fraud, it cannot be turned into a tort to charge the infant by a change in the form of action."
In Gilson v. Spear, 38 Vt. 311, another case for deceit, or fraudulent concealment of unsoundness in the sale of a horse, and a plea of infancy, where both the English and American cases on the subject are collected and discussed, this Court held 38 Vt. at page 315: "We think that the fair result of the American as well as of the English cases is that an infant is liable in an action ex delicto for an actual and wilful fraud only in cases in which the form of action does not suppose that a contract has existed; but that where the gravamen of the fraud consists in a transaction which really originated in contract the plea of infancy is a good defense. For simple deceit on a contract of sale or exchange, there is no cause of action *488 unless some damage or injury results from it, and proof of damage could not be made without referring to and proving the contract. An action on the case for deceit on a sale is an affirmance by the plaintiff of the contract of sale, and the liability of the defendant in such an action could not be established without taking notice of and proving the contract." That case then repeats and adopts the principle as stated in West v. Moore, supra.
Doran v. Smith, 49 Vt. 353, was an action on the case for false representations by a vendor as to his ownership of property sold to the plaintiff. The defendant pleaded infancy. The opinion, 49 Vt. at page 354, holds: "The representations alleged in the declaration are of the same character, and stand upon the same principles, as representations as to the quality of the propertythey enter into and constitute an element of the contract itself; it is that that makes them actionable. The contract must be alleged and proved, or there can be no recovery. The contract is the basis of the action; the fraud is predicated upon the contract. This being so, the case comes clearly within the case of Gilson v. Spear, 38 Vt. 311, and must be governed by it. It is there decided that in cases like the present, a plea of infancy is a full defense."
Nash v. Jewett, 61 Vt. 501, 18 A. 47, 4 L.R.A. 561, was an action on the case for false representation in the purchase of goods; the defendant pleaded infancy. The Court reviews the same cases as we have done and then holds 61 Vt. at page 503, 18 A. at page 48: "While it is true, as a general proposition of law, that infants are liable for their torts, yet the form of action does not determine their liability, and they cannot be made liable when the cause of action arises from a contract, although the form is ex delicto."
We are governed by the law we have quoted. If modern youth has become so sophisticated that he no longer needs protection from his contracts or public opinion demands that the long recognized rule be changed, it can be done by statute. We are constrained to hold that the plea of infancy in the present case was a full defense. Therefore, it is unnecessary to consider other questions raised by the exceptions.
Judgment reversed and judgment for the defendant to recover his costs.
