Tobey v. Wood.

the receipt of the forged note, had been given up before the payment was made. The discharge of the mortgage by Goodwin was the release of no substantial right. If Goodwin received any title to the mortgage or mortgaged premises by reason of the assignment to him, he received it in trust for another, and in no event for his own benefit. His discharge of it was, therefore, no injury in law to him. By the facts, as they appear in the report, his discharge of the mortgage effected nothing except what by law or in equity he would be compelled to do. There is no reason, therefore, why the plaintiff should not recover; and there must be

Judgment on the verdict.

TOBEY V. WOOD.

(123 Mass. 88.)

Infancy - Ratification.

An infant was a member of a firm which was dissolved seven weeks after he came of age, his partners agreeing with him to assume and pay all the debts of the firm. Among those debts were certain checks made by the firm for goods before he came of age, protested for non-payment, but which until after the dissolution, he supposed had been paid. At the time of the dissolution some of the goods for which the checks had been given remained unsold, but he did not know it. He had drawn money from the firm, after he came of age, for his personal use. Held, that these facts did not constitute a ratification of his promise to pay the checks. (See note, p. 30.)

A

CTION upon contract. The opinion states the case.

T. Weston, Jr., for plaintiff.

J. Fox, for defendant Humes.

MORTON, J. This is an action of contract upon two checks, dated respectively December 2, 1872, and January 3, 1873, signed by Seth Wood & Co., and duly presented for payment, and protested for non-payment.

The defendant Humes, the only one of the signers who defends the action, was a member of the firm of Seth Wood & Co., and, when the checks were drawn, was an infant. His promise to pay the

Tobey v. Wood.

checks, therefore, was a voidable contract, and the burden of proof is upon the plaintiff to show that Humes, after he became of age, affirmed and ratified the contract. 2 Greenl. Ev., § 367, and cases cited; Reed v. Batchelder, 1 Metc. 559. Such ratification may be shown. either by proof of an express promise to pay the debt, made by the infant after he became of age (which is not claimed in this case), or by proof of such acts of the infant, after he became of age, as fairly and justly lead to the inference that he intended to ratify the contract and pay the debt. Boody v. McKenney, 23 Me. 517; Proctor v. Sears, 4 Allen, 95; Thompson v. Lay, 4 Pick. 48; Peirce v. Tobey, 5 Metc. 168; Dublin & Wicklow Railway v. Black, 8 Exch. 181; s. c., 16 Eng. L. & Eq. 558, and note.

The plaintiff contends that the facts in this case justify the finding that the defendant Humes intended to and did ratify his promise to pay these checks. These facts are, that a portion of the goods which formed the consideration of the checks remained unsold up to the time of the dissolution of the firm, which was seven weeks after Humes became of age; that during said seven weeks he drew money for his personal use, from time to time, from the firm; and that, at the dissolution, his partners, the other defendants, agreed with him that they would assume and pay all the debts of the firm. It is also agreed that, at the time Humes became of age, and until after the dissolution, he supposed that these checks were paid.

It has often been held that, if an infant purchases property, and, after he becomes of age, retains specifically the property, and uses or disposes of it, it may be an affirmance of the contract by which he acquired it, and deprive him of the right to avoid. Chandler v. Simmons, 97 Mass. 508, and cases cited. This is upon the ground that he can honestly retain the goods only upon the assumption that the contract by which he acquired them was valid, and therefore his retention and use of them, if unexplained, justly leads to the inference of a promise or undertaking to pay for them, after his incapacity to make contracts is removed. Todd v. Clapp,

118 Mass. 495.

But this rule cannot apply in the present case, because it is not shown that Humes knew that any of the goods, which were the consideration of the checks, remained undisposed of at the time he became of age, and it is shown that he supposed that the checks had been paid. Under these circumstances, there is no foundation

Tobey v. Wood.

for an inference of a promise by him to pay the checks. Smith v. Kelley, 13 Metc. 309.

The facts that Humes remained in the firm for seven weeks after he became of age, drawing money from time to time for his personal use, and that when he retired he took an agreement from his partners that they would pay all the debts of the firm, are relied upon by the plaintiff as showing an affirmance of the checks. But we are of opinion that these facts do not afford sufficient proof of such affirmance. In this connection, it must be borne in mind that Humes supposed these checks to have been paid. In the absence of an express promise to pay, an affirmance can only be shown by unequivocal acts of the defendant, after he became capable of contracting, which show his intention to pay the debt. How far these acts of Humes might tend to show an intention on his part to ratify such debts of the firm as were within his knowledge, need not be considered. It would be forced and unreasonable to infer from them an intention and promise to pay a debt which he supposed had already been paid. Crabtree v. May, 1 B. Monr. 289; Minock v. Shortridge, 21 Mich. 304; Dana v. Stearns, 3 Cush. 372.

It is argued that the taking an agreement of indemnity from his partners implies that he was liable for the debts of the firm, and is therefore evidence of a promise to ratify and pay such debts. This is not necessarily so. The contract of indemnity may have been necessary for his protection against debts of the firm contracted after he became of age. But if this act is to be regarded as evidence that he supposed himself liable for all the debts of the firm, it is not, of itself, sufficient proof of a ratification. The act relied on as a ratification of a promise made during infancy must amount to, or be sufficient evidence of, a promise or undertaking to pay the debt. Smith v. Kelley, 13 Metc. 309.

Perhaps if an infant member of a firm should, after he became of age, buy out his partners, take the property of the firm, and agree to pay all the debts of the firm, this might amount to a ratification of his promise to pay all the firm debts, whether known or unknown to him. It would be a clear expression of his intention and undertaking, after he became competent to bind himself, to affirm and pay such debts. But taking from his partners a promise that they will pay the debts does not imply an intention on his part to pay them. It implies that he desires and expects that they will pay the debts, and is as consistent with an intention on his part to

Tobey v. Wood.

avail himself of the defense of infancy, as of the intention to waive that privilege. Upon the whole case, we are of opinion that the facts do not justify a finding that the defendant Humes, after he became of age, ratified or promised to pay the checks in suit.

Judgment for defendant Humes.

NOTE BY THE REPORTER. — The difficult question of ratification by an infant has been settled, in England, by the passage of what is known as Lord TENTERDEN'S act, which provides that “no action shall be maintained whereby to charge any person upon any promise made after full age to pay any debt contracted during infancy, or, upon any ratification after full age of any promise or simple contract made during infancy, unless such promise or ratification shall be made by some writing, signed by the party to be charged thereby." Stat. 9 Geo. IV, c. 14, § 5, A. D. 18:28. A similar statute prevails in Maine (1845, ch. 166); and in Kentucky (R. S., ch. 22, § 1). A good deal of difficulty still prevails in this country upon this question. For instance: it is said in Proctor v. Sears, 4 Allen, 95, “It has long been settled that a direct promise, when of age, is necessary to establish a direct contract made during minority, and that a mere acknowledgment will not have that effect." While in Henry v. Root, 33 N. Y. 545, it is said, "The course of decision in this State authorizes us to assume that the narrow and stringent rule, formerly enunciated, that to establish the contract, when made in infancy, there must be a precise and positive promise to pay the particular debt, after attaining majority, is not sustained by the more modern decisions." And in the latter case it was held that a new explicit promise was not necessary, but that a ratification or confirmation was sufficient. So, in Baker v. Kennett, 54 Mo. 82, it was held that "there need not be an express and formal promise, but there must be a direct and express confirmation, and a substantial promise to pay the debt or fulfill the contract."

What amounts to a ratification has been much mooted.

A direct promise to pay would seem to constitute a perfect ratification, but there is much hair-splitting as to what constitutes a direct promise. There are authorities which hold that where one says he owes the debt, but has not the means to pay it, but will pay it as soon as he can, or words to this effect, this is a mere acknowledgment, not amounting to a direct or new promise. Proctor v. Sears, 4 Allen, 95; Ford v. Phillips, 1 Pick. 202; Thompson v. Lay, 4 id. 48; Goodsell v. Myers, 3 Wend. 479; Hale v. Gerrish, 8 N. H. 374; Wilcox v. Roath, 12 Conn. 550; Chandler v. Glover, 32 Penn. 509; Conklin v. Ogborn, 7 Ind. 553; Martin v. Byrom, Dudley (Ga.), 203; Bank of Silver Creek v. Browning, 16 Abb. (N. Y.) Pr. 272; Dunlap v. Hales, 2 Jones' (N. (.) L. 381.

Without any express promise, the general doctrine seems to be, that affirinative acts of ownership and enjoyment of the property, with knowledge of all the circumstances, or recognition of the binding force of the contract, without any act or declaration of disaffirmance, are sufficient; as retaining possession. using, selling, mortgaging, or converting the property to the infant's own use. Lawson v. Lovejoy, 8 Me. 405; Boyden v. Boyden, 9 Metc. 519; Cheshire v. Barrett, 4 McCord, 241; Boody v. McKenney, 23 Me. 517; Robbins v. Eaton, 10 N. H. 561; Chapin v. Shafer, 49 N. Y. 407. So of part payment. Little v. Duncan, 9 Rich. Law, 55; Stokes v. Brown, 4 Chand. (Wis.) 39; Henry v. Root, 33 N.Y. 526. So of continuing to work for a month after majority, on a contract for labor.

Tobey v. Wood.

Forsyth v. Hastings, 27 Vt. 646. Slight declarations indicating recognition of the contract will suffice to warrant a verdict. Hoit v. Underhill, 9 N. H. 436; Bay v. Gunn, 1 Denio, 108; Cheshire v. Barrelt, 4 McCord, 241; Whitney v. Dutch, 14 Mass. 457. But the acts must be affirmative; mere passive or indecisive conduct will not answer. So submitting the question of liability to arbitration, or retaining consideration money (Benham v. Bishop, 9 Conn. 330), will not effect a ratification. But the retention of the proceeds of a sale of real estate acquired in infancy, made after majority, is not an affirmance. Walsh v. Powers, 3 Am. Rep. 654; s. c., 43 N. Y. 23. And it seems that passive conduct amounting to an estoppel may work a ratification; as where the infant, after coming of age, sees a purchaser of his real estate expending considerable sums in permanent improvements on it, and for years fails to assert his title (Wheaton v. East, 5Yerg. 41: Wallace v. Lewis, 4 Harring. 75; Highley v. Barrow, 49 Me. 103; Thompson v. Strickland, 52 Miss. 574; Jones v. Phænix Bank, 4 Seld. 235); or knowingly permits another to purchase from such purchaser without notifying him of his claim. Hall v. Simmons, 2 Rich. Fq. 120; Alsworth v. Cordtz, 31 Miss. 32; Bellon v. Briggs, 4 Desaus. 465; Cresinger v. 'Welch, 15 Ohio, 156; Emmons v. Murray, 16 N. H. 385. But see Norris v. Wait, 2 Rich. (S. C.) 148.

Mere lapse of time, disconnected from affirmative acts, will not amount to a ratification; but even a brief lapse of time, in connection with affirmative acts. will strengthen the evidence of ratification. Cresinger v. Welch, 15 Ohio, 156 So of a conveyance of real estate, where acquiescence, short of the statutor] period of limitations, will not effect a ratification. Tucker v. Moreland, 10 Pet. 58; oody v. McKenney, 23 Me. 517; Drake v. Ramsay, 5 Ohio, 251; Jackson. v. Burchin. 14 Johns. 124; Urban v. Grimes, 2 Grant, 196; Vaughan v. Parr, 20 Ark. 600; Voorhies v. Voorhies, 24 Barb. 150; Ware v. Brush, 1 McLean, 533; Moore v. Abernathy, 7 Blackf. 442; Cole v. Pennoyer, 14 Ill. 158; Green v. Green, 69 N. Y. 553; Huth v. Carondelet Ry. & Dock Co., 56 Mo. 202; Wallace v. Latham, Miss. 291; McMurray v. McMurray, 66 N. Y. 175.

In spite of a few cases relating to partnership and stock transactions (Goode v. Harrison, 5 B. & Ald. 147; Dublin & Wicklow Ry. Co. v. Black, 8 Exch. 181), we think that the absence of express repudiation will not alone constitute a ratification. Holmes v. Blogg, 8 Taunt. 39; Richardson v. Boright, 9 Vt. 368; Kline v. Beebe, 6 Coun. 494; Hoit v. Underhill, 9 N. H. 439.

But in some States statutes have been enacted making an infant's contract binding unless affirmatively disaffirmed after majority. Thus, within three years (Keil v. Healey, 84 Ill. 104; s. C., post); within a reasonable time (Stucker v. Yoder, 33 Iowa, 177); after majority. Oswald v. Broderick, 1 id. 380.

It has been held that it is not essential to a valid ratification that the party should know that he were not legally liable. Morse v. Wheeler, 4 Allen, 570. But the contrary has been held. Baker v. Kennett, 54 Mo. 82; Petty v. Roberts, 7 Bush (Ky.), 410; Owen v. Long, 112 Mass. 403; Curtin v. Patton, 11 S. & R. (Penn. } 305; Hinely v. Margaritz, 3 Penn. St. 428; Chambers v. Wherry, 1 Bailey (S. C.), 28; Norris v. Vance, 3 Rich. (S. C.) 164. The latter doctrine seems the more reasonable and the better supported.

As good a rule as can be constructed on this subject is laid down by Mr. SCHOULER (Domestic Relations, p. 582), as follows: "That the mere acknowledgment that a certain transaction constitutes a debt is sufficient to bind him lately an infant; but that an acknowledgment to the extent that he justly owes that debt, with equivocal expressions as to some future payment, may or may not be considered sufficient, though the better opinion is in favor of their suf