122. A contract made by a person while he is so drunk as to be incapable of understanding its nature and effect is voidable at his option, except that -

EXCEPTIONS - He is liable on contracts created by law, or quasi contracts.

123. The rules as to ratification and avoidance are substantially the same as in the case of infants and insane persons, except that some (but not all) courts hold that the contract cannot be avoided as against a bona fide purchaser.

The modern law places a drunken person, in respect of his capacity to contract, in the same position as an insane person.52 If his drunkenness is so excessive as to render him incapable of comprehending the nature and effect of his contract, it is voidable at his option, and it is immaterial that his drunkenness was voluntary, and not procured through the circumvention of the other party.53 In the absence of fraud, slight intoxication does not affect the validity of a contract. According to some of the older cases, the intoxication must be so excessive as utterly to deprive the party of his reason and understanding;54 but this doctrine has been very generally repudiated or modified, and the more reasonable one adopted that if the party is so far deprived of his reason and understanding as to render him incapable of understanding the nature and consequences of his contract, it is sufficient.55

49 HOVEY v. HOBSON, 53 Me. 451, 89 Am. Dec. 705, Throckmorton, Cas. Contracts, 149; Hull v. Louth, 109 Ind. 315, 10 N. E. 270, 58 Am. Rep. 405; Long v. Fox, 100 I11. 43; Rogers v. Blackwell, 49 Mich. 192, 13 N. W. 512. See "Insane Persons," Dec. Dig. (Key-No.) § 61; Cent. Dig. § 94.

50 HOVEY v. HOBSON, supra; Rogers v. Blackwell, 49 Mich. 192, 13 N. W. 512. In North Carolina it is held that the deed of a lunatic, duly recorded, cannot be avoided as against bona fide purchasers. Odom v. Riddick, 104 N. C. 515, 10 S. E. 609, 7 L. R. A. 118, 17 Am. St. Rep. 686. See "Insane Persons," Dec. Dig. (Key-No.) § 61; Cent. Dig. § 94.

51 Sentance v. Pool, 3 C. & P. 1; Anglo-Californian Bank v. Ames (C. C.) 27 Fed. 727; Wirebach's Ex'r v. Bank, 97 Pa. 543, 39 Am. Rep. 821; McClain v. Davis, 77 Ind. 419. See "Insane Persons," Dec. Dig. (Key-No.) § 77; Cent. Dig. § 131.

52 For history of the doctrine in regard to drunkenness as ground of incapacity to contract, see Cameron-Barkley Co. v. Thornton Light & Power Co., 138 N. C. 365, 50 S. E. 695, 107 Am. St. Rep. 532; Wright v. Waller, 127 Ala. 557, 29 South. 57, 54 L. R. A. 440 and note. See "Contracts," Dec. Dig. (Key-No.) § 92; Cent. Dig. §§ 412, 414; "Drunkards," Dec. Dig. (Key-No.) §6; Cent. Dig. § 7.

58 BARRETT v. BUXTON, 2 Alkens (Vt.) 167, 16 Am. Dec. 691, Throckmorton, Cas. Contracts, 155; Carpenter v. Rodgers, 61 Mich. 384, 28 N. W. 156, 1 Am. St. Rep. 595; Miller T. Finley, 26 Mich. 254, 12 Am. Rep. 308;

The contract, though voidable at the option of the drunken person, is binding on the other party, and cannot be attacked by third persons.56 By the weight of authority, if a person has been judicially declared incapable of conducting his own affairs by reason of habitual drunkenness, and has been put in the custody and under the control of a committee or guardian, his contracts are absolutely void.57

Gore v. Gibson, 13 Mees. & W. 623; Caulkins v. Fry, 35 Conn. 170; Johns v. Fritchey, 39 Md. 258; Bush v. Breinig, 113 Pa. 310, 6 Atl. 86, 57 Am. Rep. 469; Foss v. Hildreth, 10 Allen (Mass.) 76; Matthews v. Baxter, L. R. 8 Exch. 132; Shackelton v. Sebree, 86 I11. 616; Bates v. Ball, 72 I11. 108; Mansfield v. Watson, 2 Iowa, I11; Warnock v. Campbell, 25 N. J. Eq. 485; French's Heirs v. French, 8 Ohio, 214, 31 Am. Dec. 441; Cummings v. Henry, 10 Ind. 109; Reynolds v. Waller's Heirs, 1 Wash. (Va.) 164; Newell v. Fisher, 11 Smedes & M. (Miss.) 431, 49 Am. Dec. 66; Brqadwater v. Darne, 10 Mo. 277; Phelan v. Gardner, 43 Cal. 306; Birmingham Ry., Light & Power Co. v. Hinton, 158 Ala. 470, 48 South. 546 (mental incapacity resulting from administration of drugs and opiates). But see Reinskopf v. Rogge, 37 Ind. 207. In Hunter v. Tolbard, 47 W. Va. 258, 34 S. E. 737, it is held that the contract is void. It has been held that a person who, when sober, agrees to sign a contract, cannot avail himself of intoxication at the time of signature as a defense. Page v. Krekey, 63 Hun, 629, 17 N. Y. Supp. 764. Cf. Youn v. Lamont, 56 Minn. 216. 57 N. W. 478.

54 Johnson v. Phifer, 6 Neb. 401; Harbison v. Lemon, 3 Blackf. (Ind.) 51, 23 Am. Dec. 376; Belcher v. Belcher, 10 Yerg. (Tenn.) 121. See "Contracts," Dec. Dig. (Key-No.) § 92; Cent. Dig. § 1,11,.

55 J. I. Case Threshing Mach. Co. v. Meyers, 78 Neb. 685, I11 N. W. 602, 9 L. R A. (N. S.) 970. Johnson v. Harmon, 94 U. S. 371, 24 L. Ed. 271; Cameron-Barkley Co. v. Thornton Light & Power Co., 138 N. C. 365, 50 S. E. 695, 107 Am. St Rep. 532 [cit. Clark on Contracts (2d Ed.) 186]; Van Wyck v. Brasher, 81 N. Y. 260; Conley v. Nailor, 118 U. S. 127, 6 Sup. Ct. 1001, 30 L. Ed. 112; Willcox v. Jackson, 51 Iowa, 208, 1 N. W. 513; Van Horn v. Keenan, 28 I11. 445; Peck v. Cary, 27 N. Y. 9, 84 Am. Dec. 220; Wright v. Waller, 127 Ala. 557, 29 South. 57, 54 L. R. A. 440 and note [quot. Clark on Contracts (1st Ed.) pp. 274, 275]. And see cases cited in note. See "Contracts," Dec. Dig. (Key-No.) § 92; Cent. Dig. § 414.

56 Matthews v. Baxter, L. R. 8 Exch. 132; Eaton's Adm'r v. Perry, 29 Mo. 96. See "Drunkards," Dec. Dig. (Key-No.) § 6; Cent. Dig. § 7.

57 Wadsworth v. Sharpsteen, 8 N. Y. 388, 59 Am. Dec. 499; Philadelphia Trust, Safe & Deposit Ins. Co. v. Allison, 108 Me. 326, 80 Atl. 833, 39 L. R. A. (N. S.) 39; Ralph v. Taylor, 33 R. I. 503, 82 Atl. 279. This is true even of a negotiable instrument in the hands of a bona fide purchaser for value. Wads-worth v. Sharpsteen, supra. This does not apply to contracts for necessaries. McCrillia v. Bartlett, 8 N. H. 569; nor to a contract made before the appointment of the committee. Appeal of Donehoo (Pa.) 15 Atl. 924. See "Drunkards," Deo. Dig. (Key-No.) § 6; Cent. Dig. § 7.

A person who was drunk, but not under guardianship, when he entered into a contract, may either avoid or ratify it when sober;58 and ratification or disaffirmance may be by conduct showing an intention to ratify or to avoid it, as by retention of the consideration, after becoming sober, or failure to disaffirm for an unreasonable time.59 Having ratified the contract, he cannot retract and avoid it.60 On avoidance he must return or offer to return the consideration received by him,61 though, if the consideration were wasted before becoming sober, this would probably not be required.62

A drunken person is liable on contracts created by law, or quasi contracts, and is liable for necessaries furnished him.68

As to whether drunkenness is a defense against persons in good faith acquiring rights for value under the contract, - as, for instance, against the bona fide holder of a negotiable instrument, - the authorities are conflicting. Some courts hold that total, but not partial, drunkenness, is a defense,64 but, by the decided weight of authority, not even total drunkenness is a defense against a holder in due course of a negotiable instrument.65

58 gee cases cited in note 53, supra. It may be avoided by his personal representatives. Wigglesworth v. Steers, 1 Hen. & M. (Va.) 70, 3 Am. Dec. 602. See "Contracts," Dec. Dig. (Key-No.) § 92; Cent. Dig. § 412.

59 Williams v. Inabnet, 1 Bailey (S. C.) 343; Reinskopf v. Rogge, 37 Ind. 207; Smith v. Williamson, 8 Utah, 219, 30 Pac. 753; Mansfield v. Watson, 2 Iowa, I11. See "Contracts," Dec. Dig. (Key-No.) § 92; Cent. Dig. § 412.

60 Matthews v. Baxter, L. R. 8 Exch. 132; Joest v. Williams, 42 Ind. 565, 13 Am. Rep. 377. See "Contracts," Dec. Dig. (Key-No.) §§ 92, 97; Cent. Dig. §§ 412, 443.

61 Joest v. Williams, 42 Ind. 565, 13 Am. Rep. 377; Birmingham Ry., Light & Power Co. v. Hinton, 158 Ala. 470, 48 South. 546. See "Contracts," Dec. Dig. (Key-No.) §§ 92, 97; Cent. Dig. §§ 412, 442-446.

62Thackrah v. Haas, 119 U. S. 499, 7 Sup. Ct. 311, 30 L. Ed. 4S6. See "Contracts," Dec. Dig. (Key-No.) § 97; Cent. Dig. §§ 442-446; "Cancellation of Instruments," Dec. Dig. (Key-No.) § 24; Cent. Dig. §§ 33-38.

63 Gore v. Gibson, 13 Mees. & W. 623; McCrillis v. Bartlett, 8 N. H. 569. See "Contracts," Dec. Dig. (Key-No.) § 92; Cent. Dig. § 412.

64Caulkins v. Fry, 35 Conn. 170. See "Bills and Notes," Dec. Dig. (Key-No.) § 366; Cent. Dig. §§ 945, 946.

65 state Bank v. McCoy, 69 Pa. 204, 8 Am. Rep. 246; McSparran v. Neeley, 91 Pa. 17; Smith v. Williamson, 8 Utah, 219, 30 Pac. 753. See Norton, Bills & N. (3d Ed.) 232; Miller v. Finley, 26 Mich. 249, 12 Am. Rep. 306. And see Page v. Krekey, 137 N. Y. 307, 33 N. E. 311, 21 L. R. A. 409, 33 Am. St. Rep. 731, holding that a guaranty is enforceable against a drunken person by an innocent party to whom it is addressed and who has acted upon it to his