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.
An express promise by the former infant to comply with the terms of the contract1 or his conduct in keeping realty purchased, and treating it as his own after he comes of age,2 or selling it,3 or a suit for, and receipt of purchase price after majority,4 is a ratification; even if made after a suit to disaffirm the contract.5 Thus a sale of property which an infant bought, subject to liens, and on which the infant gave a mortgage to raise money to discharge the liens, is a ratification of the entire transaction including the mortgage.6 So is a recital in a mortgage given after majority, that the realty is subject to the lien of another mortgage given during minority.7 Where the property is sold before majority, giving a deed therefor after majority is a ratification.8 So is the retention and use of the proceeds after majority.9 An oral promise to perform a bond to convey realty and a request for a payment thereon,10 a promise after majority to pay the note given for land and take the land, if the vendor will remit the accrued interest,11 and an oral statement of satisfaction with a deed executed during minority12 have each been held to be a ratification. But where A, while a minor, gave notes secured by a real estate mortgage, then married, and after coming of age executed an instrument without any consideration, reciting that she took "pride and pleasure in ratifying, affirming and indorsing the said acts as fully" as if she had been of age, this did not affirm the mortgage, because it was not executed in the method prescribed by the Tennessee statute for the conveyance by married women of their interests in realty.13 While good as against the infant, an oral affirmance has, under recording statutes, been held invalid as to subsequent purchasers for value who know of the deed made by the infant, but are ignorant of his ratification.14 So conduct in keeping personalty and using it as his own after majority,15 or demanding and receiving it after majority,16 or selling it,17 or exchanging it,18 is a ratification. Thus an infant partner cannot retain partnership property transferred to him on his promise to pay partnership debts and refuse to pay such debts.19 But retaining possession for three months, notice of rescission being promptly given is not ratification,20 nor is retaining property if claimed by a different title, as where the property in question was partnership property which was attached, sold, bought in by the infant's grandfather, and sold by him to the infant.21 Acting as a partner for a few days after majority, by drawing profits has been held not to be a ratification of individual liability if in ignorance of outstanding debts,22 but otherwise it is.23 By the weight of authority the rule in ratification of an infant's contracts, different from that in waiving the statute of limitations, is that a mere acknowledgment that the obligation has been incurred,24 or even a part payment thereon,25 is not a ratification. Even payment of interest, part payment of principal, and a mere acknowledgment of the debt,26 or a statement, "I owe a debt, and you will get your pay," wag held not to be a ratification ;27 nor is an acknowledgment of the debt coupled with a statement that he would not pay it,28 or with an offer to compromise, if not accepted.20 A provision in a will directing just debts to be paid, does not authorize the executors to pay debts contracted during infancy.30 If a conditional ratification is made, the offer must be accepted and the condition complied with to make it a valid ratification.31
1 Bestor v. Hickey, 71 Conn. 181; 41 Atl. 555; Barlow v. Robinson, 174 111. 317; 51 N. E. 1045; Whitney v. Dutch, 14 Mass. 457; 7 Am. Dee. 229; Martin v. Mayo, 10 Mass. 137; 6 Am. Dec. 103; Tyler v. Gallop, 68 Mich. 185; 13 Am. St. Rep. 336; 35 N. W. 902; Houlton v. Man-teuffel, 51 Minn. 185; 53 N. W. 541; Edgerly v. Shaw. 25 N. H. 514; 57 Am. Dec. 349; Tibbets v. Ger-rish, 25 N. H. 41; 57 Am. Dec. 307; Hatch v. Hatch, 60 Vt. 160; 13 Atl. 791.
2 American, etc., Co. v. Dykes, 111 Ala. 178; 56 Am. St. Rep. 38; 18 So. 292; Ellis v. Alford. 64 Miss. 8; 1 So. 155; Baxter v. Bush. 29 Vt. 465; 70 Am. Dec. 429.
3 Buchanan v. Hubbard, 119 Ind. 187; 21 N. E. 538; Leathers v. Ross, 74 Ia. 630; 38 N. W. 516; Dana v. Coombs. 6 Greenl. (Me.) 89; 19 Am. Dec. 194; Uecker v. Koehn, 21 Neb. 559; 59 Am. Rep. 849; 32 N. W. 583; Lynde v. Budd. 2 Paige Ch. (N. Y.) 191; 21 Am. Dec. 84.
4 Lathrop v. Doty, 82 Ia. 272; 47 N. W. 1089.
5 Buchanan v. Hubbard, 119 Ind. 187; 21 N. E. 538.
6 Langdon v. Clayson, 75 Mich. 204; 42 N. W. 805. In this case the infant on reaching majority quit-claimed the land to A, and afterward made a warranty deed to A, reciting therein that it was for the purpose of "expressly revoking all former deeds and mortgages made by me before I became of age."
7 Ward v. Anderson, 111 N. C. 115; 15 S. E. 933.
8 Wall v. Mines, 130 Cal. 27; 62 Pac. 386.
9 Waters v. Lyon, 141 Ind. 170; 40 N. E. 662. In Owens v. Phelps, 95 N. C. 286, this was said to be admissible in evidence, though not of itself a ratification. Contra, in Walsh v. Powers, 43 N. Y. 23, 3 Am. Rep. 654; retention of the proceeds of the sale of real estate was held not to ratify a mortgage given thereon during minority.
10 Barlow v. Robinson, 174 111. 317; 51 N. E. 1045.
11 Houlton v. Manteuffel, 51 Minn. 185; 53 N. W. 541.
12 Ferguson v. Bell, 17 Mo. 347.
13 Walton v. Gaines, 94 Tenn. 420; 29 S. W. 458.
14 Black v. Hills, 36 111. 376; 87 Am. Dec. 224.
15 Lawson v. Lovejoy, 8 Greenl. (Me.) 405; 23 Am. Dec. 526; Delano v. Blake, 11 Wend. (N. Y.) 85; 25 Am. Dec. 617; Cheshire v. Barrett, 4 McCord (S. C.) 241; 17 Am. Dec. 735; Ihley v. Padgett, 27 S. C. 300; 3 S. E. 468; Nanny v. Allen, 77
Tex. 240; sub nom., Manney v. Allen, 13 S. W. 989. Contra, Paul v. Smith, 41 Mo. Ap. 275 (retaining property did not amount to ratification in conformity with Missouri statute).
16 Nanny v. Allen, 77 Tex. 240; sub nomine, Manney v. Allen, 13 S. W. 989.
17 Hilton v. Shepherd, 92 Me. 160; 42 Atl. 387.
18 Curry v. Plow Co., 55 111. App. 82.
19 Kitchen v. Lee, 11 Paige (N. Y.) 107; 42 Am. Dec. 101.
20 Scott v. Scott, 29 S. C. 414; 7 S. E. 811.
21 Todd v. Clapp, 118 Mass. 495. 22 Tobey v. Wood, 123 Mass. 88; 25 Am. Rep. 27.
23 Salinas v. Bennett, 33 S. C. 285; 11 S. E. 968.
24 Fetrow v. Wiseman. 40 Ind. 148; Martin v. Mayo, 10 Mass. 137; 6 Am. Dec. 103; (obiter) Reed v. Boshears, 4 Sneed (Tenn.) 118; Hatch v. Hatch, 60 Vt. 160; 13 Atl. 791.
25 Thrupp v. Fielder. 2 Esp. 628; Kendrick v. Neisz, 17 Colo. 506; 30 Pac. 245; Catlin v. Haddox, 49 Conn. 492; 44 Am. Rep. 249; Barn-aby v. Barnaby, 1 Pick. (Mass.) 221; Hinely v. Margaritz, 3 Pa. St. 428; Rapid, etc., Co. v. Sanford (Tex. Civ. App.), 24 S. W. 587. But in Little v. Duncan, 9 Rich. Law (S. C.) 55; 64 Am. Dec. 760, it was held that admitting that the transaction was just and giving a watch to be taken as part payment if it kept good time was a ratification.
26 Kendrick v. Neisz, 17 Colo. 506; 30 Pac. 245.
27 Hale v. Gerrish, 8 N. H. 374.
28 Minoek v. Shortridge, 21 Mich. 304.
29 Bennett v. Collins. 52 Conn. 1.
30 Jackson v. Mayo. 11 Mass. 147: 6 Am. Dee. 167; Smith v. Mayo. 9 Mass. 62; 6 Am. Dec. 28. Contra, Merchants', etc., Ins. Co. v. Grant, 2 Edw. Ch. (N. W.) 544.
31 Craig v. Van Bebber, 100 Mo. 584; 10 Am. St. Rep. 569; 13 S. W. 906 : State ex rel. Peacock v. Binder, 57 N. J. L. 374; 31 Atl. 215; Bre-see v. Stanley, 119 N. C. 278; 25 S. E. 870.
Thus neither a promise by a minor after coming of age to pay if he was ever to do so without inconvenience,32 nor an offer after majority to execute a deed of confirmation on payment of the balance of the purchase money,33 is a ratification. So to enforce a contract which the former infant promised to perform if able, it must be shown that he is able.34 If an express promise is relied on as a ratification, it must be made to the adversary party or his agent; not to a stranger.35 Hence it may be made to an attorney with whom the debt is placed for collection,36 or his clerk,37 even if there is nothing to show that the former infant knew of his agency.38 At Common Law an infant's ratification may be made orally ;39 but by statutes of certain states this rule is modified and an infant's express ratification must be in writing.40 The express promise must be absolute. A conditional promise to pay an open account, contained in a letter written after majority, is not a compliance with the Virginia statute.41 These statutes do not apply to contracts ratified by the conduct of the infant, as by selling42 or retaining possession of the property purchased.43 Mere failure to disaffirm promptly is not a ratification.44 Thus, continuing to live with his parents after majority is not a ratification by an infant of an application by his father of such infant's wages to the rent.45 However, silence, where circumstances impose on the minor the duty of speaking, may operate as a ratification,46 as where he stands by, knowing that the grantee,47 or the vendee of his grantee,48 is making valuable improvements on realty sold by him, in reliance on the title. The mere erection of valuable improvements, unknown to the minor, as where he was absent from the state, does not affect his right to disaffirm.49
32 Bresee v. Stanley, 119 N. C. 278; 25 S. E. 870.
33 Craig v. Van Bebber, 100 Mo. 584; 18 Am. St. Rep. 569; 13 S. W. 906.
34 Proctor v. Sears, 4 All. (Mass.) 95; Thompson v. Lay, 4 Pick. (Mass.) 48; 16 Am. Dec. 325.
35 Hoit v. Underhill, 9 N. H. 436; 32 Am. Dec. 380; Chandler v. Glover, 32 Pa. St. 509.
36 Hodges v. Hunt, 22 Barb. (N. Y.) 150.
37 Mayer v. McLure, 36 Miss. 389; 72 Am. Dec. 190.
38 Hoit v. Underhill, 10 N. H. 220; 34 Am. Dec. 148.
39 West v. Penny, 16 Ala. 186; Jeffords v. Ringgold, 6 Ala. 544; Vaughan v. Parr, 20 Ark. 600; Phillips v. Green, 5 T. B. Mon. (Ky.) 344; Wheaton v. East, 5 Yerg. (Tenn.) 41; 26 Am. Dec. 251; Stokes v. Brown, 4 Chand. (Wis.) 39; 3 Pinney (Wis.) 311.
40 Hartley v. Wharton, 11 Ad. & El. 934; Stern v. Freeman, 4 Met. (Ky.) 309; Neal v. Berry, 86 Me. 193; 29 Atl. 987; Bird v. Swain, 79 Me. 529; 11 Atl. 421; Thurlow v. Gilmore, 40 Me. 378; Ward v. Sche-rer, 96 Va. 318; 31 S. E. 518.
41 Ward v. Scherer, 96 Va. 318; 31 S. E. 518.
42 Hilton v. Shepherd, 92 Me. 160; 42 Atl. 387.
43 McKamy v. Cooper, 81 Ga. 679; 8 S. E. 312.
44 Hill v. Nelms, 86 Ala. 442: 5 So. 796; Hoffert v. Miller, 86 Ky.