This section is from the book "The Law Of Contracts", by William Herbert Page. Also available from Amazon: Commercial Contracts: A Practical Guide to Deals, Contracts, Agreements and Promises.
While not always clearly expressed, the early view of an infant's negotiable contracts seems to have been that if valid at all, they must be strictly negotiable and subject to no defense in the hands of a bona fide holder for value before maturity. Since under this theory, it was impossible for such contracts to be voidable, as they must be either absolutely void or strictly valid, the courts held them void,1 at least if in the hands of an indorsee.2 In these cases, however, the only question involved was whether the infant could not avoid his contract.3 The modern view of such contracts is that while negotiable in form they are not negotiable in law. Minority may always be set up as a defense, even as against a bona fide holder. Accordingly, such contracts are voidable, unless for necessaries.4 Thus, an infant's promise to pay loan from a bank is not void; hence the promise of his surety is collateral only, not original.5 An infant's liability to a surety on bis note is also voidable unless for necessaries;6 but if for a reasonable value for necessaries he must reimburse the surety.7 While it is ordinarily no defense to a surety that the principal is a minor,8 a surety on a minor's note is not liable where the minor disaffirms and returns the consideration.9 An infant's contract of indorsement is voidable only. It is not void, since the maker cannot refuse to pay the indorsee;10 and it is not valid, since the infant can avoid his liability to the indorsee,11 and before payment by the maker he can avoid the indorsement and recovery from the maker.12 Whether he can avoid his indorsement and recover of the maker after payment by the maker to the indorsee is a point upon which is found no direct authority and conflicting dicta.13 Of course if an in-
7 Fridge v. State, 3 Gill & J. (Md.) 103; 20 Am. Dec. 463. In this case the decision was placed on the ground that the release as distinguished from a mere receipt was prejudicial to the infant. The same result would have followed from holding it voidable.
8,Jones v. Payne, 41 Ga. 23; Baker v. Lovett, 6 Mass. 78; 4 Am. Dec. 88; Barnaby v. Barnaby, 1 Pick. (Mass.) 221; Jones v. Bank, 8 N. Y. 228.
9 Millsaps v. Estes, 134 N. C. 486; 46 S. E. 988; Britton v. Williams, 6 Munf. (Va.) 453.
1 Burgess v. Merrill, 4 Taunt.
468; Swasey v. Vanderheyden's Admr., 10 Johns. (N. Y.) 33; McMinn v. Richmonds, 6 Yerg. (Tenn.) 9.
2 Morton v. Steward 5 111. App.
533. (In this case the consideration was necessaries furnished.)
3 Except Burgess v. Merrill, 4 Taunt. 468, where it was held that the holder of a bill accepted by an adult and a minor should sue the adult alone.
4 La Grange, etc., Institute v. Anderson, 63 Ind. 367; 30 Am. Rep. 224; Keokuk, etc., Bank v. Hall, 106 Ia. 540; 76 N. W. 832; Best v. Giv-ens, 3 B. Mon. (Ky.) 72; Stern v. Freeman, 4 Met. (Ky.) 309; Whitney v. Dutch, 14 Mass. 457; 7 Am. Dec. 229; Baker v. Stone, 136 Mass. 405; Minock v. Shortridge, 21 Mich. 304; Edgerly v. Shaw, 25 N. H. 514; 57 Am. Dec. 349; Houston v. Cooper, 3 X. J. L. 866 (where a note of an infant was said to be "invalid") ; Brown v. Bank, 88 Tex. 265; 33 L. R. A. 359; 31 S. W. 285; Askey v.
Williams, 74 Tex. 294; 5 L. R. A. 176; 11 S. W. 1101; Patchin v. Cromach, 13 Vt. 330. As to con-tracts for necessaries, see Sec. 865.
5 Brown v. Bank, 88 Tex. 265; 33 L. R. A. 359; 31 S. W. 285.
6 Leacox v. Griffith. 76 Ia. 89; 40 N. W. 109. In this case the executor became surety for an infant heir on a note and was secured by a chattel mortgage. The infant sold the property before the mortgage was recorded and the surety had to pay the note. To reimburse him the infant released to him his claims against the estate. This was held voidable. Leacox v. Griffith, 76 Ia. 89; 40 N. W. 109.
7 Conn v. Coburn, 7 N. H. 368; 26 Am. Dec. 746; Haines Admr. v. Tarrant, 2 Hill (S. C.) 400. Contra, Ayers v. Burns, 87 Ind. 245; 44 Am. Rep. 759.
8 Hesser v. Steiner, 5 Watts & S. (Pa.) 476.
9 Keokuk, etc., Bank v. Hall, 106 Ia. 540; 76 N. W. 832; citing and following, Baker v. Kennett, 54 Mo. 82 Patterson v. Cave, 61 Mo. 439.
10 Frazier v. Massey, 14 Ind. 382; Hardy v. Waters, 38 Me. 450; Nightingale v. Withington, 15 Mass. 272; 8 Am. Dec. 101. This is true even if the indorsement is made by an agent. Hardy v. Waters, 38 Me. 450; Whitney v. Dutch, 14 Mass. 457; 7 Am. Dec. 229. However, early authority holds under the old rule given in Sec. 855 that an indorsement made by one for an infant even in her presence and with her consent is void, so that it passes no title even though the infant does nothing to avoid it. Hence the holder cannot use it as a set-off. Semple v. Morrison, 7 T. B. Mon. (Ky.) 298.
11 Nightingale v. Withington, 15 Mass. 272; 8 Am. Dec. 101; Dulty v. Brownfield, 1 Pa. St. 497.
12 Hastings v. Dollarhide, 24 Cal. 195.
13 In Briggs v. McCabe, 27 Ind. 327, the court said that in such case the infant could recover, prefacing their remarks with "as to what would be the effect of payment by the maker of a note to the assignee fant's contracts are made void by statute, this will include commercial paper. Thus, in England an infant cannot bind himself by the acceptance of a bill of exchange given for necessaries under such a statute.14