TRAINER v. TRUMBULL.

141 MASSACHUSETTS, 527.— 1886.

C. ALLEN, J. The practical question in this case is, whether the food, clothing, etc., furnished to the defendant were necessaries for which he should be held responsible. This question must be determined by the actual state of the case, and not by appearances. That is to say, an infant who is already well provided for in respect to board, clothing, and other articles. suitable for his condition, is not to be held responsible if any one supplies to him other board, clothing, etc., although such person did not know that the infant was already well supplied. Angel v. McLellan, 16 Mass. 28; Swift v. Bennett, 10 Cush. 436; Davis v. Caldwell, 12 Cush. 512; Barnes v. Toye, 13 Q. B. D. 410. So, on the other hand, the mere fact that an infant, as in this case, had a father, mother, and guardian, no one of whom did anything towards his care or support, does not prevent his being bound to pay for that which was actually necessary for him when furnished. The question whether or not the infant made an express promise to pay is not important. He is held on a promise implied by law, and not, strictly speaking, on his actual promise. The law implies the promise to pay, from the necessity of his situation; just as in the case of a lunatic. 1 Chit. Con. (11th Am. ed.) 197; Hyman v. Cain, 3 Jones (N. C.), 111; Richardson v. Strong, 13 Ired. 106; Gay v. Ballou, 4 Wend. 403; Epperson v. Nugent, 57 Miss. 45, 47. In other words, he is liable to pay only what the necessaries were reasonably worth, and not what he may improvidently have agreed

disaffirmed, and need not be ratified before they can be enforced; second, the contract of an infant appointing an agent or attorney in fact is absolutely void and incapable of ratification; third, any contract that is illegal, by reason of being against a statute or public policy, is absolutely void and incapable of ratification; fourth, all other contracts made by an infant are voidable only, and may be affirmed or disaffirmed by the infant at his election when he arrives at his legal majority. The second proposition may not be founded in solid reason, but it is so held by all the authorities." Fetrow v. Wiseman, 40 Ind. 148, 155. See also Harner v. Dipple, 31 Ohio St. 72; Mustard v. Wohlford's Heirs, 15 Gratt. (Va.) 329.

to pay for them. If he has made an express promise to pay, or has given a note in payment for necessaries, the real value will be inquired into, and he will be held only for that amount. Earle v. Reed, 10 Met. 387; Locke v. Smith, 41 N. H. 346; Met. Con. 73, 75.

But it is contended that the board, clothing, etc., furnished to the defendant were not necessaries, because he, "being a pauper and an inmate of an almshouse, was supplied with necessaries suitable to his estate and condition, and, under the circumstances, it would have been the duty of the guardian to place him in the almshouse." It is true that a guardian is not obliged to provide for the support of his ward, when he has no property of the ward available for that purpose; and if he has no other resource, no doubt he may, under such circumstances, place the ward in an almshouse. The authorities cited for the defendant go no further than this. Spring v. Woodworth, 2 Allen, 206. But this by no means implies that a boy with an expectation of a fortune of $10,000 should be brought up in an almshouse, if any suitable person will take him and bring him up properly, on the credit of his expectations. On the other hand, it seems to us highly proper for a parent or guardian, under such circumstances, to do what the father did in this case; leaving it for the boy's guardian to see to it that an unreasonable price is not paid. Looking to the advantage of his subsequent life, as well as to his welfare for the time being, his transfer from an almshouse to a suitable person, by whom he would be cared for and educated, would certainly be judicious; and the support and education furnished to an infant of such expectations, whose means were not presently available, fall clearly within the class of necessaries. In Met. Con. 70, the authority of Lord Mansfield is cited to the point that a sum advanced for taking an infant out of jail is for necessaries. Buckinghamshire v. Drury, 2 Eden, 60, 72. also Clarke v. Leslie, 5 Esp. 28. Giving credit to the infant's expectation of property is the same as giving credit to him. There was no error in refusing to rule, as matter of law, that, upon all the facts in evidence, the action could not be maintained. The findings of all matters of fact, of course, are not open to revision.

Exceptions overruled.

§ 3. Corporations.

SLATER WOOLLEN CO. v. LAMB.

143 MASSACHUSETTS, 420.-1887.

Action upon contract for goods sold and delivered.

Contract, upon an account annexed for goods sold and deliv

ered.

FIELD, J. If we assume that the truth of the exceptions has been established, we think that they must be overruled. The substance of the defendant's contentions is, that the Slater Woollen Company, having been incorporated "for the purpose of manufacturing fabrics of wool and worsted or of a mixture thereof with other textile materials," could not, by and in the name of persons who were in fact keeping a store as its agents, but whose agency was undisclosed, sell groceries, dry goods, and other similar articles to the defendant, who was not employed by the company, and then maintain an action against him to recover either the price or the value of the goods sold.

If the goods were the property of the plaintiff, and were sold by its agents, the plaintiff can sue as an undisclosed principal.

It was said of Chester Glass Co. v. Dewey (16 Mass. 94) in Davis v. Old Colony Railroad (131 Mass. 258, 273) that “the leading reason assigned was, 'the legislature did not intend to prohibit the supply of goods to those employed in the manufactory; in other words, the contract sued on was not ultra vires. That reason being decisive of the case, the further suggestion in the opinion, Besides, the defendant cannot refuse payment on this ground; but the legislature may enforce the prohibition, by causing the charter to be revoked, when they shall determine that it has been abused,' was, as has been since pointed out, wholly obiter dictum." But the weight of authority, we think, supports the last reason given in its application to the facts of the present case. There is a distinction between a corporation making a contract in excess of its powers, and making a contract which it is prohibited by statute from making, or which is against public policy or sound morals; and there is also a distinction between suing for the breach of an executory contract and suing to recover the value of property which has been received and

retained by the defendant under a contract executed on the part of the plaintiff.

If it be assumed, in favor of the defendant, that the contracts of sale in the case at bar were ultra vires of the corporation, they were not contracts which were prohibited, or contracts which were void as against public policy or good morals; the defect in them is, that the corporation exceeded its powers in making them. The defendant, under these contracts, has received the goods, and retained and used them. Either the corporation must lose the value of its property, or the defendant must pay for it; in such an alternative, courts have held, on one ground or another, that an action can be maintained when the sole defect is a want of authority on the part of the corporation to make the contract. We think that the corporation can maintain an action of contract against the defendant to recover the value of the goods. The defendant is not permitted to set up this want of authority as a defense; and as the form of the transaction was that of contract, such should be the form of the action.

We are not required to determine whether an action can be maintained to recover the price, as distinguished from the value of the goods, as no exception has been taken to the measure of damages. Chester Glass Co. v. Dewey, ubi supra; Whitney Arms Co. v. Barlow, 63 N. Y. 62; Woodruff v. Erie Railroad, 93 N. Y. 609; Nassau Bank v. Jones, 95 N. Y. 115; Pine Grove Township v. Tulcott, 19 Wall. 666, 679; National Bank v. Matthews, 98 U. S. 621; National Bank v. Whitney, 103 U. S. 99. See Whitney v. Leominster Savings Bank, 141 Mass. 85; Bowditch v. New England Ins. Co., 141 Mass. 292; Wright v. Pipe Line Co., 101 Penn. St. 204.

Exceptions overruled.1

1 Upon the last point in the foregoing opinion: Gray, J., in Central Transportation Co. v. Pullman's Car Co., 139 U. S. 24, 60 (1890):

"A contract ultra vires being unlawful and void, not because it is in itself immoral, but because the corporation, by the law of its creation, is incapable of making it, the courts, while refusing to maintain any action upon the unlawful contract, have always striven to do justice between the parties, so far as could be done consistently with adherence to law, by permitting property or money parted with on faith of the unlawful contract, to be recovered back or compensation to be made for it.

§ 4. Lunatics and drunken persons.

GRIBBEN v. MAXWELL.

34 KANSAS, 8.-1885.

Error from Cowley District Court.

Action brought December 7, 1883, by Noah Gribben, as guardian of Olive E. Gribben, a lunatic, against Samuel E. Maxwell, to set aside a conveyance executed by Olive E. Gribben on June 11, 1883.

HORTON, C. J. As a general rule, the contract of a lunatic is void per se. The concurring assent of two minds is wanting. They who have no mind cannot concur in mind' with one

66

"In such case, however, the action is not maintained upon the unlawful contract nor according to its terms, but on an implied contract of the defendant to return, or, failing to do that, to make compensation for, property or money which it has no right to retain. To maintain such an action is not to affirm, but to disaffirm the unlawful contract."

Walton, J., in Brunswick Gas Light Co. v. United Gas Fuel & Light Co., 85 Me. 532, 541 (1893):

"But it is claimed that, inasmuch as the defendant company took and held possession of the plaintiff company's works by virtue of the lease, ultra vires is no defense to an action to recover the agreed rent. We do not doubt that the plaintiff company is entitled to recover a reasonable rent for the time the defendant company actually occupied the works, but do not think the amount can be measured by the ultra vires agreement. We think that in such cases the recovery must be had upon an implied agreement to pay a reasonable rent; and that while the ultra vires agreement may be used as evidence, in the nature of an admission, of what is a reasonable rent, it cannot be allowed to govern or control the amount. It seems to us that it would be absurd to hold that the ultra vires lease is void, and at the same time hold that it governs the rights of the parties with respect to the amount of rent to be recovered. A void instrument governs nothing. We think the correct rule is the one stated by Mr. Justice Gray in a recent case in the United States Supreme Court. He said that a contract made by a corporation which is unlawful and void, because beyond the scope of its corporate powers, does not by being carried into execution become lawful and valid, and that the proper remedy of the aggrieved party is to disaffirm the contract and sue to recover as on a quantum meruit the value of what the defendant has actually received the benefit of. Pittsburgh &c. v. Keokuk &c., 131 U. S. 371. We think this is the correct rule. 2 Beach on Corp. § 423, and cases there cited."

On the other hand, the doctrine of equitable estoppel to prevent defendant from relying upon the invalidity of the contract is applied in Denver Fire Ins. Co. v. McClelland, 9 Col. 11, 22 (1885).