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others are binding. If the agreement be positively injurious' to him, and can only operate to his prejudice, it is absolutely void, for it is self-evident that unfair advantage and influence has been exercised over him. Such is a bond executed by him as a surety.

Contracts that are for his benefit may be affirmed or avoided by him when he arrives at age, when he is presumed to have arrived at years of discretion. Executory contracts of an infant are generally voidable, and he may refuse to perform during infancy, or disaffirm them when he becomes of age, and leave the other party without remedy. But if a contract is completely executed, and it is beneficial to the infant, and was entered into in good faith, the infant cannot rescind it unless he can restore what he has received and put the other party in the same position that he occupied before the contract. An infant is also liable for the fair value of necessaries supplied to him, not on his express contract, but on a contract implied by law, which gives a reasonable price to those who furnish necessaries, “since an infant must live, as well as a man.'

Though an infant may not contract for himself, he may act as agent for another, and his acts are as binding upon the principal as an adult’s.' IIe c:innot appoint an attorney, nor sue or be sued, except by next friend or guardian, and in general has no legal capacity to act for himself.' An infant is liable for injuries to property or persons wrongfully committed by him. As is often said, “his privilege of infancy is given to him as a shield, and not as a sword.” He is not, however, liable for the evil consequences of a breach of contract.

25. Imbeciles, Inebriates, and Lunatics. - For the same general reasons a contract made by an idiot, a lunatic, or drunkard may be avoided in the same ways as those recited for infants, if it can be proved that the party is incapable of reasoning and judging of what is for his benefit. Much that has been said of the infant may be repeated for them. Their contracts are voidable only and may be ratified upon their returning to reason. If a person has agreed to sign a contract when sober, the fact that he was intoxicated at the time he did sign it will not excuse him from liability.' And the contract of an habitual drunkard is good if made in a sober interval.'

“Mere weakness of mind is no ground for incapacity, and does not afford




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* Robbins v. Mount, 33 How. Pr. 24[1867). 610 Amer. & Eng. Ency. Law 674-8.

• Page v. Kreky (Sup.), 17 N Y. Supp. 764 (1892).

? Ritters' Appeal. 9 P F. Sm. 9: Caulkins v. Fry, 35 Conn, 170; Evans v. Horan, 52 M. D. 602; Wait v. Maxwell, 5 Pick 217; Elston o. Jasper, 45 Texas 409; Brecken. ridge v. Ormsby, 1 J. J. Marsh. 236. For more about the insane, or idiots, see Pollock on Contracts, p. 419, and notes.

sufficient ground for setting aside a contract, but it may support an inference of fraud and unfair practice when the contract is entirely to the disadvantage of the weaker party. A contract obtained by fraud will be void in any case, whatever be the comparative intelligence of the parties, but a court of equity will set aside a contract where it is evident that advantage has been taken of a weak-minded person, when it would not give relief to the same contract between parties of sound understanding." As in the case of an infant, if the mind of one party had become impaired by age, the contract is none the less operative against the other party if the latter be in full possession of his faculties.?

The ground of relief in all these cases is based upon two principles: First, that of mutuality—a capacity to comprehend the agreement into which they have entered, and an understanding of the terms of the agreement; secondly, that no fraud be practised or unlawful advantage be taken of either party. This protection is given to all parties, infants or adults, sane or insane, intelligent or idiotic, sober or drunk, and, in the language of a prominent English jurist, “it is unaccountable that a man shall not be able to excuse himself by the visitation of heaven, when he may plead duress from men to avoid his own acts.” Justice will not permit the strong to take advantage of the weak. It is sufficient to invalidate any contract if it clearly appear that the party contracting did not at the time understand what he was about.

Intoxication may afford relief from a contract only when the party is so drunk that he cannot exercise his judgment. It must be so excessive and absolute as to suspend the reason. “The merriment of the cheerful cup, which rather revives the spirits than stupefies the reason, is no hindrance to the contracting of just obligations." If the lunatic contract during a lucid period, or the idiot when his reason is restored, or a drunkard when he knows what he is about, the contract may be established, and will be sustained.

Many fine questions arise upon this subject upon which volumes have been written-questions as to what constitutes a ratification or new promise of an infant at his maturity, what are necessaries, what degree of weak-mindedness, or insanity, or intoxication will afford relief, etc., but they are too cumbersome to treat at length in this work.'

Generally speaking, each and all are liable for necessaries furnished in good faith, and on executed contracts. To escape liability they must restore to the other party what they have received on the contract. If a contract shows on its face good judgment on the part of the imbecile as a shrewd

Harmon o. Harmon (Cir. Ct.), 51 Fed. Rep. 113.

? Se Sands v. Potter (Ill. Sup.), 46 N. E. Rep. 282.

See Story on Contracts, Part 2; Amer.

& Eng. Ency. Law (subjects), Pollock on Contracts, Leake's Digest of Law of Con. tracts, and other standard works on the subject.


bargain, and it is to his benefit, the rule ought not to apply. Parties who have been adjudged insane or idiotic by a court and a guardian has been appointed, are wholly incapacitated from contracting, and contracts entered into by them are void.' To enforce a contract with a person habitually insane there must be proof that the same person was sane and capable of contracting at the time of the transaction.'

28. Married Women.—At common law a married woman could not contract, sue, or be sued in her own name. To prevent domestic discord and create a legal unity, the will of the husband was made paramount. and wife were regarded as one person in their legal status, and whatever a m:urried woman did her husband should join in it. The common law still prevails in some parts of the United States, but in most states it is modified by statutes, which are so different in the several states that it is thought inadvisable to attempt to discuss them. Suffice it to say that a married woman should not be inade a party to a contract, without the statutes of the state expressly grant the power to contract, independent of her husband, and then the requirements of the statute should be carefully studied and explicitly followed. Much trouble and loss have been experienced by contractors by neglecting to inquire into the marital relations of parties and the law governing them, peculiar to the jurisdiction. Contracts have been made and structures erected for which no recovery could be had, because the contract was void or the structure has been erected


land owned by the wife when the husband has assumed the obligation to pay. For like reasons it has been held that a woman cannot contract with her husband, and such contracts have generally been held not binding. In the absence of a statute giving such authority, the legal incapacity to contract remains as at common law. At common law a contract or promissory note between husband and wife was absolutely void.' And the same has been held in New York state, where no statute had been passed as late as 1889. But, although contracts between husband and wife are invalid in a court of law, courts of equity may give effect to agreements and transactions between them so far as they are just and fair and equitable and ought to be enforced. The agreement should not be voluntary, but should be for some consideration.' The difficulty doubtless has been that such contracts could not be enforced, as the courts would entertain no action on them. The law has been modified in many states.

A woman may employ her husband to act as her agent to transact any and all of her business, and it has been held that she might contract with him to do all her work ; that she could contract with him for the construction of a building or any part of it for a stipulated price and by the job. If he employed subcontractors to perform the work he had undertaken, it was

111 Amer. & Eng. Ency. Las 131. and cases cited. • Rickettso Jollitr, 62 Miss 440 (1884). - Hendricks V. Isaacs, 117 N Y. 411 > Koeil v. Eg eston, 140 Miiss. 202 (1885), [1889).

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intimated that the subcontractor must look to the husband for his pay, even though he supposed the husband to be the owner of the property ; but that for work the subcontractor had done with the wife's knowledge that was not a part of the husband's contract work, she must pay him for as if it were in fact her work.' A contract between a husband and wife who had parted has been held not void. In most states a woman has the legal right to bind herself by a contract, and she and her own property will be liable for debts so incurred. She may contract for the erection of buildings upon her property. A married woman may contract as an agent of her husband or as agent of third parties. She may contract for necessaries and bind her husband to pay therefor, but it is on his behalf and she assumes no responsibility herself.

27. Other Conditions Affecting a Person's Capacity to Contract. -Dise abilities and forfeitures incurred on account of political and social conditions of parties are nearly obsolete in this country. Outlawry is almost wholly unknown. Attainder is prohibited by our constitution, and in times of peace a contract made and obligations assumed by an alien or foreigner will be enforced by our courts. If war be declared by or against the country of which he is a citizen he becomes an alien enemy; his legal right to se upon the contract is suspended until peace is declared. A contract entered into during war between an alien and citizen is utterly void, for the law declares such contracts illegal, because if permitted, an enemy would thereby be enabled to disturb a nation's finances and wage war on the internal business and credit of a country, to the destruction of its resources, The law of nations prohibits every kind of trading, commercial dealing, or contract between citizens of two countries at war which tends to increase the resources of the enemy or weaken the power of home government.

Seamen are special wards of the law. The general recklessness, thoughtlessness, and ignorance of this class of men is considered and specific favor is shown them. The law of the United States protects them from recovery of any debt greater than one dollar incurred during a voyage, and a sailor need only produce his shipping papers to be dismissed from court. Contracts of seamen for services constitute the bulk of this class of cases, and as they are remote to engineering, the profession is referred to books specially treating the subject.

In some jurisdictions bankrupts receive the special protection of the law. Since the solvency of a person or corporation is one of the most necessary things to inquire into, it can hardly be thought that any one will undertake to enter into an agreement with a bankrupt without first ascertaining his resources or requiring a bond as security.

The infirmities of a contract arising from the parties not being sui juris

i Fairbanks 0. Mothersell, 60 Barb. 406 (1871)

? Duryea v. Bliven, 12. N. Y. 567.
3 Greenleaf v. Beebe, 80 III, 520 (1875).

and capable of contracting are not cured by an assignment of his interest by one of the parties thereto.'

28. Either Party Under Duress. -Neither party to a contract should have been under duress of person or goods,' nor under great excitement, or fear, or compulsion when the contract was made.' Mere angry or profane words, or strong or earnest language will not constitute such duress as will relieve a party from his contract. Duress by threats which will avoid a contract only exists where such threats excite or may reasonably excite a fear of some grievous wrong, as bodily injury or unlawful imprisonment. To make a payment compulsory such pressure must be brought to bear upon the person paying as to interfere in some way with the free enjoyment of his rights of person or property. The imprisonment, threatened or

" feared, must have operated on the mind so far as to deprive the contract of the character of a voluntary act.' So it has been held that a contract was not signed under duress when a contractor who had commenced work under a parol contract for grading one mile of road bed was required to sign a contract for one-half a mile only, and on his refusal to sign the contract the owner said to contractor's men: “I will stand good for no more work you do for contractor.” Contractor being unable to continue the work unless the owner paid the men, he signed the contract.' A wife may avoid her contract extorted by a threatened criminal prosecution of her husband on the ground of duress. The fact that the husband bas destroyed the forged papers incriminating him, which papers had been surrendered when the wife gave her note, does not prevent the wife from avoiding her note extorted under threats of prosecuting her husband.' Threats of lawful arrest of a person justly amenable to criminal prosecution without circumstances of oppression or frand do not constitute duress or menace, for which a deed executed under pressure of such threat can be cancelled.'

29. Agency-Parties Acting by or through their Agents.-“by and between

.(name of owner or corporation.) acting by and through..

... President, Treasurer, Engineer, Attorney, Agent, by virtue of the power vested in him by power of attorney of the of

18., a copy of which is hereto annexed;” or “acting by and through the ....Commissioners..

..Board of Public Works, by virtue of the power vested in them by chapter..... .....of the Laws of 18.....of the State of....

.and the amendments

McCorkle 0. Goldsmith, 1 Mo. App. Rep. 172

76 Amer. & Ing. Ency. Law, pp. 57.92, 93 ; Miller o. Miller, 68 Pa. St. 486 (1871]: Adams d. Scheffer (Col.), 17 Pac Rep. 21; Jorlan o. Elliott (Pa.), 15 Cent. L. J. 232 (18-21

26 Amer. & Eng. Ency. Law 57-59 ; McCarthyo. Hampion Blds. Assn., 61 Iowa 287; Lomerson 0. Johnson (N. J.), 13

Atl. Rep. 8.

4 Adains v. Stringer, 78 Ind. 175 (1881).
5 Stover v. Mitchell, 45 III. 213(1867).
6 Berrett v. Weber, 125 N. Y. 18 (1890).

? McCormick v. Dalton (Kan.), 35 Pac. Rep. 1113

* City Bank 0. Kusworm (Wis.), 53 N. W. Rep. 564.

Gregor v. Hyde (C. C A.), 62 Fed. Rep. 107.

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