Action-Pleading-Evidence.

§ 264. Where a note is made by a drunkard before the appointment of a guardian, the action on it must be brought against him, and not against the guardian.157 The defense of drunkenness should be specially pleaded,158 although it has been held to be admissible under the general issue.159 The fact of drunkenness and the degree of incapacity caused by it are for the jury to determine.160 The burden of proof lies on the party alleging it as a defense; 161 but, if insanity for such cause be once shown, the burden is shifted to the plaintiff to establish sanity at the time of the contract in question.162 The finding of an inquisition, as in the case of lunacy, is presumptive evidence to support the defense.163 And it seems that a note, inadmissible as evidence of debt for want of a stamp, is admissible as evidence of the maker's condition at the time, in disproof of an allegation of drunkenness and fraud.164 As with other defenses, where the fact of drunkenness is once established, the burden is thrown upon the holder of the paper to show himself a bona fide holder for value before maturity." 165

note given by a drunkard was for necessaries rests on the party offering it. Devin v. Scott, 34 Ind. 67.

157 Coombs v. Janvier, 31 N. J. Law, 240.

158 Byles, Bills, 64; 1 Daniel, Neg. Inst. 220; Gore v. Gibson, 13 Mees. & W. 623.

159 Pitt v. Smith, 3 Camp. 33.

160 Cummings v. Henry, 10 Ind. 109.

161 Burroughs v. Richman, 13 N. J. Law, 233.

162 Menkins v. Lightner, 18 Ill. 282. But evidence that the maker of the note was a broken-down inebriate, with occasional fits of insanity, is not enough to shift the burden of proof. Gardner v. Gardner, 22 Wend. (N. Y.) 526.

163 McGinnis v. Com., 74 Pa. St. 245. But in Devin v. Scott, 34 Ind. 67, it was held to be conclusive evidence.

164 Gregory v. Fraser, 3 Camp. 454.

165 Hale v. Brown, 11 Ala. 87.

(457)

Disability of Infants-Foreign Statutes.

§ 265. By the law merchant, as by the common law of England, infants are incapable of binding themselves by legal contract. This incapacity extends at common law, and by statute in most of the United States, to all persons under the age of 21 years. The minority of women ends, however, by the statutes of some states, at the age of 18 years. Such contracts of infants as were formerly voidable at common law are now made void by the infants' relief act, passed in England in 1874.167 By the Code Napoleon, and in the countries following its lead, bills of exchange drawn by minors, who are not traders, are void as to them, although the rights of

166

166 ARKANSAS (Sand. & H. Dig. § 3567); IOWA (Rev. Code, § 3188). 167 37 & 38 Vict. c. 62. This act provides as follows (section 1): "All contracts, whether by specialty or by simple contract, henceforth entered into by infants for the repayment of money lent or to be lent, or for goods supplied or to be supplied (other than contracts for necessaries), and all accounts stated with infants shall be void: provided, always, that this enactment shall not invalidate any contract into which an infant may by any existing or future statute or by the rules of common law or equity enter, except such as now by law are voidable." Section 2: "No action shall be brought whereby to charge any person upon any promise made after full age to pay any debt contracted during infancy, or upon any ratification made after full age of any promise or contract made during infancy, whether there shall or shall not be any new consideration for such promise or ratification after full age."

other parties relative to one another are saved.168 By the German exchange law an infant's power to make a bill or note is, in general, co-extensive with his power to make other binding contracts. This power exists for the most part only where the infant contracts as a merchant.169 In Venezuela such bills are mere acknowledgments of debt, and not subject to the rules of the lex mercatoria, unless the infant have been declared competent to engage in trade.1 170

Disability at Common Law.

§ 266. The rule of the English common law is that infants' contracts are, in general, not absolutely void, but only voidable, and therefore capable of ratification.171 1. This is true even of contracts which are not for necessaries.172 Thus, an exchange of horses by an infant is voidable, and he may recover the price agreed on.173 So, if a horse purchased by him is retained by his administrator, the voidable contract is ratified, and the infant's estate liable.1 So, a seaman's contract is voidable only, and he may recover a quantum meruit.175 The following contracts by an infant have, in like manner, been held to be voidable only and capable of ratification: A chattel mortgage; 1 an undertaking for a stay of execution; 177

168 FRANCE (Code Com. art. 114); GREECE (Code Com. art. 114); HAYTI (Code Com. art. 112); ITALY (Code Com. art. 200); MONACO (Code Com. art. 104); ROUMANIA (Code Com.); SERVIA (Code Com. art. 79); SAN DOMINGO (Code Nap. art. 114). In the Servian Code the liability of an infant for benefit actually received is reserved, although his bill of exchange is declared void.

169 Thöl, Wechselrecht, 108. In some cases, however, the consent of the minor's guardian is required. Id.

170 VENEZUELA (Code Com. art. 8).

171 Chit. Bills, 27; Warwick v. Bruce, 2 Maule & S. 205, 6 Taunt. 118. See, too, Byles, Bills, 59; Story, Prom. Notes, § 67; 1 Pars. Notes & B. 67; Tucker v. Moreland, 10 Pet. 59; Rogers v. Hurd, 4 Day (Conn.) 57; Woolston v. King, 3 N. J. Law, 1049; Moses v. Stevens, 2 Pick. (Mass.) 332. 172 Hands v. Slaney, 8 Term R. 578.

173 Grace v. Hale, 2 Humph. (Tenn.) 27. 174 Shropshire v. Burns, 46 Ala. 108.

175 Vent v. Osgood, 19 Pick. (Mass.) 572.

176 Chapin v. Shafer, 49 N. Y. 407. 177 Harner v. Dipple, 31 Ohio St. 72.

a marriage contract; 178 an account stated; 179 and even a deed reciting a valuable consideration received.180

Contracts Beneficial or Otherwise-Executory or Executed.

§ 267. The true distinction is probably between contracts which are for the advantage of the infant and those which are not, the latter being held to be void and the former only voidable.181 Thus, a note given by an infant for the debt of another is void 182 although it has been held that even such a note may be ratified.1 183 On the other hand, a contract for the hire of a servant, which has been for the benefit of the minor, will be binding upon him.184 And it has been held that a contract which has been made for the advantage of the infant may be enforced against him in equity.185 But if the contract be merely executory, e. g. a sale of goods to be delivered, it will not be binding on the infant without such delivery made.1

Contracts in Trade.

186

§ 268. Where an infant is engaged in trade, either alone or as member of a firm, his contract in such business is voidable only.187

178 Willard v. Stone, 7 Cow. (N. Y.) 22.

179 Williams v. Moor, 11 Mees. & W. 256.

180 Bool v. Mix, 17 Wend. (N. Y.) 119; Wheaton v. East, 5 Yerg. (Tenn.) 41; Bozeman v. Browning, 31 Ark. 364. But see Porch v. Fries, 18 N. J. Eq. 204.

181 Zouch v. Parsons, 3 Burrows, 1794, cited by Lord Eldon in 17 Ves. 383; Allen v. Allen, 2 Dru. & War. 307; Rogers v. Hurd, 4 Day (Conn.) 57. 182 Maples v. Wightman, 4 Conn. 376; Wentworth v. Wentworth, 5 N. H. 410; Fetrow v. Wiseman, 40 Ind. 148; Williams v. Harrison, 11 S. C. 412.

183 Owen v. Long, 112 Mass. 403; Fetrow v. Wiseman, supra; Williams v. Harrison, supra.

184 Wood v. Fenwick, 10 Mees. & W. 195.

185 Radford v. Westcott, 1 Desaus. Eq. (S. C.) 596.

186 Fonda v. Van Horne, 15 Wend. (N. Y.) 635.

187 Hunt v. Massey, 5 Barn. & Adol. 902, 3 Nev. & M. 109. So, too, a note for goods purchased for business purposes. Wright v. Steele, 2 N. H. 51; Thing v. Libbey, 16 Me. 55; Booth v. McFarland, 2 La. Ann. 398; Skinner v. Maxwell, 66 N. C. 45. But see, contra, as to an infant's business note, Van Winkle v. Ketcham, 3 Caines (N. Y.) 323; Houston v. Cooper,

And even his note given for goods purchased by his firm has been held to be voidable only.188 An infant is not, however, liable in general on a partnership note given by the firm to which he belongs. 189 As to the infant partner, such note is voidable, and it seems that, if it be a joint note, the other partners cannot be held upon it without him, until it is disaffirmed by him.190 If, however, the infant has failed to give public notice of his leaving the firm, he will be liable, after coming of age, upon firm notes given after that time, as in the case of an adult retiring partner.1

Contracts for Necessaries.

191

192

193

§ 269. An exception to the rule exonerating infants from liability is made by the law in favor of contracts for necessaries. But what are necessaries is a question of fact for the jury.1 Where one who sells goods to an infant seeks to recover for them as necessaries, he assumes the burden of proving them such.1 Among many things held under the circumstances of the individual case to be necessaries for an infant are a miner's outfit,194 solitaire diamonds,195 board,196 funeral expenses for husband; 197 while, on the contrary, a horse and saddle,198 horse hire for a minor student at Oxford, 199 and even college tuition and room rent,200 have been held not to be necessaries. The circumstances of each particular case

3 N. J. Law, 866; and as to other business contracts, e. g. a sale of goods, Latt v. Booth, 3 Car. & K. 292.

188 Minock v. Shortridge, 21 Mich. 304.

189 Conklin v. Ogborn, 7 Ind. 553; James v. Alford, 15 La. Ann. 506; Neal v. Berry, 86 Me. 193.

190 Wamsley v. Lindenberger, 2 Rand. (Va.) 478.

191 Goode v. Harrison, 5 Barn. & Ald. 147.

192 Ryder v. Wombwell, L. R. 4 Exch. 32; Bonney v. Reardin, 6 Bush (Ky.) 34.

193 Kline v. L'Amoureux, 2 Paige (N. Y.) 419.

194 Breed v. Judd, 1 Gray (Mass.) 455.

195 Ryder v. Wombwell, L. R. 4 Exch. 32.

196 Bradley v. Pratt, 23 Vt. 378. And a note given for it was held valid. Id.

197 Chapple v. Cooper, 13 Mees. & W. 252.

198 Beeler v. Young, 1 Bibb (Ky.) 519.

199 Harrison v. Fane, 1 Man. & G. 550.

200 Middlebury College v. Chandler, 16 Vt. 683.