h. What constitutes ratification.- Statutes frequently provide that the ratification of an infant's contract in order to bind him when he becomes of age must be in writing.76 Under such statutes any written instrument signed by the party, which, in the case of adults, would have amounted to the adoption of the act of an agent, will, in the case of an infant, who has attained his majority, amount to a ratification." Nor is it necessary that the writing should be addressed or dated, or that the sum for which the promisor is to be bound should be shown therein.78 But at common law, which is in force in almost all of the United States, a verbal promise or ratification is sufficient. The ratification must be the free and voluntary act of the former infant;80 and it has been frequently held, although there are conflicting authorities, that time, according to its tenor, trans- debt contracted during infancy, or ferable by delivery; of course, when upon any ratification made after full transferred to Robert Reed, the plain- age of any promise or contract made tiff, he took it as a negotiable note, during infancy, with or without new and may maintain an action on it. consideration for such promise or ratiThis deprives the promisor of none of fication after full age. his immunities as an infant, because the law considers him as having full capacity when the ratification was made, and without such ratification no action would lie." A reply to a plea of infancy, in an action upon a note, which alleges that, after the defendant came of age, and before suit brought, he ratified his execution of such note by entering into an agreement with the plaintiff and his authorized agent, in which he promised to pay the same, is not demurrable, since the note of an infant is merely voidable, and may be ratified without consideration. Heady v. Boden, 4 Ind. App. 475, 30 N. E. 1119. new a 76. By the English Infants' Relief Act (37 & 38 Vict., chap. 62, § 1), it is provided that all contracts, whether by specialty or simple contract, entered into by infants to repay 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 absolutely void. The effect of this section is limited by a proviso to such as are now by law voidable. Section of this act is to the effect that no action shall be brought whereby to charge any person upon any promise, made after full age, to pay any This act in effect repeals Lord Tenterden's Act (9 Geo. IV, chap. 14, § 5), which enacted, "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, unless such promise or ratification shall be made by some writing signed by the party to be charged therewith." Many of the American States, such as Arkansas, Kentucky, Maine, Mississippi, Missouri, New Jersey, South Carolina, Virginia, and West Virginia, have statutes containing substantially the same provisions. 77. Harris v. Wall, 1 Exch. (Eng.) 122. 78. Hartley v. Wharton, 11 Ad. & El. (Eng.) 934. Under the American statutes, see Thurlow v. Gilmour, 40 Me. 378; Bird v. Swain, 79 Me. 529, 11 Atl. 421; Stern v. Freeman, 4 Metc. (Ky.) 309. 79. West v. Penny, 16 Ala. 186; Vaugh v. Parr, 20 Ark. 600; Kendrick v. Neisz, 17 Colo. 506, 30 Pac. 245; Hoit v. Underhill, 10 N. H. 220, 34 Am. Dec. 148; Halsey v. Reid, 4 Hun (N. Y.), 777. 80. Ford v. Phillips, 1 Pick. (Mass.) 202; Pitcher v. Turin Plank Road Co., 10 Barb. (N. Y.) 436; McCormick v. Walker, Fed. Cas. No. 8,728. that when the ratification was made, it must have been known to the person making it, that he was not liable by law under his contract.8 81 It seems well settled at the present time that a mere acknowledgment of a debt by the infant after majority is insufficient as a ratification. There must be an express confirmation or new promise, voluntarily and deliberately made.82 It is probable, however, that the act of the infant, after attaining his majority, may be of such a nature as to raise an inference against him and in favor of the contract.83 His tacit assent under such circum 81. Pesto v. Roberts, 7 Bush (Ky.), 410; Smith v. Mayo, 9 Mass. 62; Ford v. Phillips, 1 Pick. (Mass.) 202; Curtin v. Patton, 11 Serg. & R. (Pa.) 305; McCormick v. Walker, Fed. Cas. No. 8,728. Contra are the following: American Mortg. Co. v. Wright, 101 Ala. 658, 14 South. 399; Morse v. Wheeler, 4 Allen (Mass.), 570; Anderson v. Soward, 40 Ohio St. 325, 48 Am. Rep. 687. The infant is chargeable, upon becoming of age, with knowledge of the legal effect of his deed, previously made. Bentley v. Greer, 100 Ga. 35, 27 S. E. 974. Missouri.-Baker v. Kennett, 54 Mo. New York.- Millard v. Hewlett, 19 Wend. (N. Y.) 301. V. North Carolina. Alexander Hutcheson, 9 N. C. 535; Turner v. Gaither, 83 N. C. 357, 35 Am. Rep. 574; Bresee v. Stanley, 119 N. C. 278, 25 S. E. 870. Pennsylvania.- Hinely v. Margaritz, 3 Pa. St. 428. The The case was 82. Greenleaf, in his work on Evidence (§ 367), says: "There is a distinction between those acts and words which are necessary to ratify an executory contract and those which are sufficient to ratify an executed contract. In the latter case any act amounting to an explicit acknowledgment of liability will operate as a 83. Ratification inferred. The case ratification; as in the case of the pur- of Lawson v. Lovejoy, 8 Me. 405, 23 chase of land or goods, if, after com- Am. Dec. 526, was an action in asing of age, he continues to hold the sumpsit brought by the indorsee property and treat it as his own. But against the maker of a note. in order to ratify an executory agree- defense was infancy. ment, made during infancy, there must submitted to the court on these facts: not only be an acknowledgment of lia- The note was given by the defendant bility, but an express confirmation or while an infant, for a yoke of oxen purnew promise voluntarily and deliber- chased by him. On coming of age ately made by the infant upon his com- after the maturity of the note, he coning of age, and with the knowledge verted the oxen to his own use, and that he is not legally liable. An ex- received the avails. The court said: plicit acknowledgment of indebtment, "It seems to be a well-settled princiwhether in terms or by a partial pay- ple that such contracts of an infant as ment, is not alone sufficient; for he the court can pronounce to be to his may refuse to pay a debt which he ad- prejudice are void; such as are of an mits to be due." uncertain nature, as to benefit or prejudice, are voidable, and may be confirmed or avoided at his election, and such as are for his benefit, as for necessaries, instruction, and the like, The following cases uphold this doctrine: Connecticut.- Wilcox v. Roath, 12 Conn. 550. stances as will not excuse his silence has also been held to amount to a ratification of the contract.84 In the case of Lawson v. Lovejoy, an extract from the opinion therein being contained in the note, the retention by an infant, after becoming of age, of the avails of the sale of a pair of oxen, for the purchase price of which the infant had given his promissory note, was considered as sufficient to imply a ratification of the validity of the note, and the plea of infancy was set aside.85 There are many other cases holding that a retention of the property after a notice to return it would be a ratification of the contract.88 But if the infant had are valid. sequent to his arrival at age, it has been ratified and confirmed, either by a new promise, or by any act by which an acquiescence is implied. But if there has been no such ratification and he repudiate the contract, common honesty will not and legal principles ought not to permit him to retain the consideration which was the foundation of the promise he thus avoids. He should place himself and the person with whom he contracted in the same situation as if no contract had been made. Surely he ought not to be permitted to keep all and pay nothing." It was then held that the conversion into cash of the property for which the note was given, after the infant became of age, and the retention of the avails thereof, were a sufficient ratification of the validity of the note. See also Hilton v. Shepard, 92 Me. 160, 42 Atl. 387. The law so far protects honest community are to be defrauded him, in the second class of contracts, of their property. The privilege is as to afford him an opportunity, when afforded for no such purpose. The arrived at full age, to consider his law requires of the infant the strict bargain, its probable tendency and performance of his engagement, if, subeffect, to review the circumstances under which it was made, and, having weighed its advantages and disadvantages, to ratify or avoid it. If it be ratified, the original contract becomes binding, and may be enforced. The ratification gives life and validity to the old promise, and, if the contract be enforced at law, it will be by an action on the original agreement, and not on the ratification. But a ratification must, on the one hand, be some thing more than a mere acknowledgment of the debt; while, on the other, it need not be a direct promise to pay or perform. A direct promise is, indeed, evidence of a ratification, but not the only evidence. The contract of an infant may be rendered as valid when he arrives at full age, by his mere acts, as by the most direct and unequivocal promise. His confirmation of the act or deed of his infancy may be justly inferred against him, after he has been of age for a rea- And see Green v. Green, 69 N. Y. 553; 84. Means v. Robinson, 7 Tex. 502. sonable time, either from his positive acts in favor of the contract, or from Davis v. Dudley, 70 Me. 256; Wise v. his tacit assent, under circumstances Loeb, 15 Pa. Super. Ct. 601. not to excuse his silence. * 85. Lawson v. Lovejoy, 8 Me. 405, The law wisely protects youth from 23 Am. Dec. 526. 86. Thomasson v. Boyd, 13 Ala. 419; Manning v. Johnson, 26 Ala. 446, 62 Am. Dec. 734, in which the court said: "If an infant after he arrives at age is shown to be possessed of the consideration paid him, and either disposes of it so that he cannot restore it, or retains it for an unreasonable length of time after attaining his majority, this amounts to an affirmance of the contract. So likewise if it is disposed of the consideration before arriving at his majority, as where the money paid to him under the contract had been spent or wasted by him,87 or the property had been sold and the proceeds of the sale squandered or invested in other property,88 the failure to return the property or repay the money would not be deemed a ratification.89 And where a promissory note was given by an infant for money loaned, he may avoid the note without returning the amount of the loan unless it appears that the money loaned is still in his possession.90 23. Persons of unsound mind. 91 a. In general-Persons of unsound mind are either lunatics, idiots, or other persons non compotes mentis from age, imbecility, or personal infirmity. Since every contract presupposes that it is founded in the free and voluntary consent of each of the parties, which a person non compos mentis is unable to give, it was formerly the rule that the contracts of such a person were utterly shown that he has power to restore the thing that he received he cannot be allowed to rescind without first making restoration. But if the consideration so paid was money, and there is no proof that he was possessed of the money so obtained after he attained his majority so as to be able to restore it to the purchaser, the infant should not be required in a court of law to repay the amount he received as a prerequisite to the avoidance of his deed in a suit for the land." See also Eureka Co. v. Edwards, 71 Ala. 248, 46 Am. Rep. 314; Curry v. St. John Plow Co., 55 Ill. App. 82; Burgett v. Barrick, 25 Kan. 527; Jenkins v. Jenkins, 12 Iowa, 195; Middleton v. Hoge, 5 Bush (Ky.), 478; Dana v. Combs, 6 Me. 86, 19 Am. Dec. 194; Boyden v. Boyden, 9 Metc. (Mass.) 519, in which case it was held that if an infant, after coming of age, retains property received by him for his own use, or sells or otherwise disposes of it, such action will be held to be an affirmance of the contract, and he cannot defeat an action on the note for the purchase price; Aldrich v. Grimes, 10 N. H. 194; Stern v. Freeman, 61 Ky. 309; In re Kimmel, 1 Walk. (Pa.) 290; Weed v. Beebe, 21 Vt. 495. 87. Chandler v. Simmons, 97 Mass. 514, 93 Am. Dec. 117; Miller v. Smith, 26 Minn, 248, 37 Am. Rep. 407; Walsh v. Powers, 43 N. Y. 23, 3 Am. Rep. 654; Allen v. Lardner, 78 Hun (N. Y.), 603; Reynolds v. Curry, 100 Ill. 356; Dill v. Bowen, 54 Ind. 204. 88. Leacox v. Griffith, 76 Iowa, 89; Robbins v. Eaton, 10 N. H. 506; Nichol v. Steger, 2 Tenn. Ch. 328, affd. in 6 Lea (Tenn.), 393; Hangen v. Hachmeister, 17 Jones & S. (N. Y.) 34; Petrie v. Williams, 68 Hun (N. Y.), 589, 23 N. Y. Supp. 237. 89. Walsh v. Young, 110 Mass. 396; Price v. Furman, 27 Vt. 271, 65 Am. Dec. 194; Wiser v. Lockwood's Estate, 42 Vt. 720; Bedinger v. Wharton, 27 Gratt. (Va.) 857. 90. Miller v. Smith, 26 Minn. 248, 2 N. W. 942, 37 Am. Rep. 407; Pemberton Bldg. & Loan Assn. v. Adams, 53 N. J. Eq. 258, 31 Atl. 280. 91. Story on Promissory Notes, § 101. Coke has enumerated four different classes of persons who are deemed in law to be non compotes mentis: First, an idiot or a fool natural; second, he was of good and sound mind and memory, but by the act of God has lost it; third, a lunatic, lunaticus qui gaudet lucidis intervallis, who sometimes is of good, sound mind and memory, and sometimes non compos mentis; fourth, one who is non compos mentis by his own act, as a drunkard. Coke Litt. 247a; 4 Coke, 124. See Black L. Dict., p. 821. void. This rule no longer obtains, at least not to the same extent; and it seems now to be generally agreed that the contracts of an insane person before office found are voidable only, and not absolutely void,93 and may, upon the removal of the disability, or by the act of a lawfully appointed guardian, be disaffirmed or ratified.94 b. Presumption of sanity; notice. Every person is presumed to be of sound mind and capable in that respect of making a contract until the contrary appears. If a person enters into a contract with a person whom he knows to be insane, there is no valid coutract; for unsoundness of mind would be a good defense to an action upon a contract, if it could be shown that the defendant. was not of capacity to contract, and the plaintiff knew it.95 But 92. Story on Promissory Notes, Flach v. Gottschalk Co., 88 Md. 368, 101; Byles on Bills (2 (16th ed.), 41 Atl. 908; Townsend v. Pepperill, 99 P. 72. Furiosus nullum negotium Mass. 40; Dennett v. Dennett, 44 N. H. gere potest, quia non intelligit quid 531, 84 Am. Dec. 97; Odell v. Buck, 21 agit. Inst. Lib. 3, tit. 20, § 8; Digest, Wend. (N. Y.) 142; Jackson v. GuLib. 50, tit. 7, pp. 5, 40, 124. maer, 2 Cow. (N. Y.) 552; Haynes v. Scott, 35 App. Div. (N. Y.) 515, 54 N. Y. Supp. 844; Beals v. See, 10 Pa. St. 56, 49 Am. Dec. 573; Dodds v. Wilson, 3 Brev. (S. C.) 389; Sims v. McLure, 8 Rich. Eq. (S. C.) 286, 70 Am. Dec. 196; Etna L. Ins. Co. v. Sellers, 154 Ind. 370, 56 N. E. 97; Boyer v. Berryman, 123 Ind. 451, 24 N. E. 249. 93. Chattel mortgage made by an insane person, apparently sane and not judicially pronounced insane, vests title, and, after default, the right of possession in the innocent mortgagee, and the mortgagee having acquired possession, the chattels cannot be recovered from the mortgagee without disaffirmance. Fay v. Burditt, 81 Ind. 433, 42 Am. Rep. 142, in which the court said: "It is now the well-settled doctrine of this court, that the contracts of the unsound in mind, whose incapacity has not been judicially determined, are not void, but only voidable, and may, upon the removal of the disability, or by the act of a lawfully appointed guardian, be disaffirmed or ratified." Citing Musselman v. Cravens, 47 Ind. 1; Nichol v. Thomas, 53 Ind. 42; Freed v. Brown, 55 Ind. 310; Wray v. Chandler, 64 Ind. 146; Hardenbrook v. Sherwood, 72 Ind. 403; Schuff v. Ransom, 79 Ind. 458. Generally, see Ex p. Northington, 37 Ala. 496, 79 Am. Dec. 67; Wetter v. Habbersham, 60 Ga. 194; Bunn v. Postel, 107 Ga. 490, 33 S. E. 707; Orr v. Equitable Mortg. Co., 107 Ga. 499, 33 S. E. 708; Emery v. Hoyt, 46 Ill. 258; Burgess v. Pollock, 53 Iowa, 273, 36 Am. Rep. 218; Mead v. Stegall, 77 Ill. App. 679; Hovey v. Holson, 55 Me. 256; 94. The next friend of a non compos mentis is wholly without authority to make a contract that is binding upon her or her estate, and it is only by a guardian regularly appointed that contracts can be made bind upon a person non compos mentis. Page v. Louisville & Nash. R. R. Co. (Ala.), 29 South. 676. 95. Molton v. Camroux, 2 Exch. (Eng.) 501; Browne v. Joddrell, 3 Car. & P. (Eng.) 30; Dane v. Kirkwall, 8 Car. & P. (Eng.) 679; Gore v. Gibson, 13 Mees. & W. (Eng.) 623. Implied notice. If one contract with a lunatic, and under such a contract furnish him money, and render him services, which, however, prove of no benefit to him, he cannot recover of the lunatic therefor, even though he in good faith supposed him to be sane, provided the circumstances known to him in regard to the other's mental condition were such as to convince a reasonable and prudent man of his insanity, or even to put him on an in |