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.
The infant cannot, without the consent of the adversary party, affirm that part of the transaction which is advantageous to him and disaffirm the rest; but he must treat the entire transaction as a unit.1 Thus, an infant cannot avoid a contract made by both herself and her father, by which it is agreed that she shall draw her wages subject to the conditions of the contract, and recover the wages unconditionally.2 A minor bought stock from a corporation. Subsequently such corporation transferred its business to another under a contract that upon repayment to such other of the purchase price of such plant it would issue certificates of its own stock. The infant sued such other corporation to recover the price paid for the stock. It was held that he could not recover.3 In another case a contract was made by infants for the purchase of lands, which lands were deeded to them, and paid for in part by cash and the rest by notes given by their guardian in his official capacity. Subsequently suit was brought on the notes and a judgment was obtained, on which the realty was sold. It was held that the infants could not demand that the vendors make title on payment to them of the balance of the purchase price.4 So a minor cannot adopt the acts of his agent in part and repudiate them in part.5 The infant cannot claim the benefit of a conditional contract, and refuse to be bound by the condition.6 So a minor purchasing goods by conditional sale cannot, after condition broken, interpose infancy as a defense.7 So, an infant cannot retain property purchased by him, whether realty,8 or personalty,9 and avoid a purchase-money mortgage given therefor, or a vendor's lien reversed in the deed,10 or refuse to pay therefor on the ground of infancy,11 even if the mortgage was given to a third person who advanced the purchase money.12
17 Pyne v. Wood, 145 Mass. 558; 14 N. E. 775.
18 Sparr v. Ry. Co., 25 Fla. 185; 6 So. 60.
19 Mustard v. Wohlford, 15 Gratt. (Va.) 329; 76 Am. Dec. 209 (as where a minor avoided a contract to sell land by selling the property to another after majority).
20 Sparr v. Ry., 25 Fla. 185: 6 So. 60; Fetrow v. Wiseman. 40 Ind. 148; Stern v. Freeman, 4 Met. (Ky.) 309; Freeman v. Nichols, 138 Mass. 313.
21 Downing v. Stone, 47 Mo. App. 144.
1 Peers v. McLaughlin, 88 Cal. 294; 22 Am. St. Rep. 306; 26 Pac. 119: Howard v. Cassels, 105 Ga. 412; 70 Am. St. Rep. 44; 31 S. E.
562; Biederman v. O'Connor. 117 111. 493; 57 Am. Rep. 876; 4 West. 152; 7 N. E. 463; Carpenter v. Carpenter, 45 Ind. 142; Robinson v. Berry, 93 Me. 320; 45 Atl. 34; White v. Mount Pleasant, etc., Corp., 172 Mass. 462; 52 N. E. 632; Strong v. Ehle, 86 Mich. 42; 48 N. W. 868; Ladd v. Wiggin, 35 N. H. 428; Henry v. Root, 33 N. Y. 526; Overbach v. Heermance, 1 Hopk. Ch. (N. Y.) 337; 14 Am. Dec. 546; Kitchen v. Lee, 11 Paige (N. Y.) 107; 42 Am. Dec. 101; Kincaid v. Kincaid, 85 Hun (N. Y.) 141; Cur-tiss v. McDougal, 26 O. S. 66; Tennessee, etc., Co. v. James, 91 Tenn. 154; 30 Am. St. Rep. 865; 15 L. R. A. 211; 18 S. W. 262.
2 Tennessee, etc., Co. v. James, 91 Tenn. 154; 30 Am. St. Rep. 865; 15 L. R. A. 211; 18 S. W. 262.
3 White v. Mount Pleasant, etc., Corp., 172 Mass. 462; 52 N. E. 632.
4 Howard v. Cassels, 105 Ga. 412; 70 Am. St. Rep. 44; 31 S. E. 562.
5 State v. New Orleans, 105 La. 768; 30 So. 97.
6 Biedermann v. O'Connor, 117 111. 493; 57 Am. Rep. 876; 7 N. E. 463; Lowry v. Drake, 1 Dana (Ky.) 46.
7 Robinson v. Berry, 93 Me. 320; 45 Atl. 34.
8 Strong v. Ehle, 86 Mich. 42; 48 N. W. 868; Uecker v. Koehn, 21 Neb. 559; 59 Am. Rep. 849; 32 N. W. 583; Bigelow v. Kinney, 3 Vt. 353; 21 Am. Dec. 589.
9 Heath v. West, 28 N. H. 101; Curtiss v. McDougal, 26 O. S. 66; Knaggs v. Green, 48 Wis. 601; 33 Am. Rep. 838; 4 N. W. 760.
10 Smith v. Henkel, 81 Va. 524.
11 Thomason v. Phillips, 73 Ga. 140.
12 Ready v. Pinkham, 181 Mass. 351; 63 N. E. 887. So Thurston v. Building Society (1902), 1 Ch. 1.
An advance to an infant to enable him to purchase land forms an entire transaction with the purchase of such land, and the infant cannot prevent the lender from being subrogated to the rights of the vendor and enforcing a vendor's lien, though a mortgage given by the infant to secure such debt in part is not valid,13 while, an advance to an infant to enable him to erect buildings on land purchased is not an entire transaction with the purchase, and the infant may retain such land and repudiate liability for such advances.14 This view is not, however, entertained in all cases. Thus where A borrowed money from B to enable him to pay X for certain realty, and A gave to B a mortgage on such realty, it was held that A could repudiate the mortgage while retaining the realty.15 So if an infant repudiates a sale, one claiming under him cannot enforce a chattel mortgage given as part of the transaction.16 But where A, a minor, sold a horse which he warranted sound, and after majority the note given in part payment therefor was paid and A endorsed "The note being paid, I discharge property thereby secured," it was held that this did not ratify the warranty.17 In a recent case, however, the infant's representative has been allowed to avoid a contract in part.18 The infant had secured a life insurance policy by an application in which he warranted certain facts which were not true. The policy of an adult could have been avoided by the insurance company for such false warranties, but it was held that the beneficiary could avoid such warranties and enforce the rest of the policy. The court based its decision on the rule that an infant was not liable on his warranty collateral to an executed contract of sale.19 This latter rule is absolutely correct,20 but it does not apply to the case at bar. In a warranty collateral to a sale, the infant is merely resisting the enforcement of a contract, executory as to himself. The adversary party might possibly have rescinded the contract for fraud or for breach, but he has elected to affirm it and enforce the executory contract. In O'Rourk v. Ins. Co. the infant's representative is seeking to enforce that part of a contract favorable to herself and to avoid the part unfavorable to her.
13 Thuston v. Building Society (1902), 1 Ch. 1.
14 Thurston v. Building Society (1902), 1 Ch. 1.
15 Citizens', etc., Association v. Arvin, 207 Pa. St. 293; 56 Atl. 870.
16 Hyde v. Courtwright, 14 Ind. App. 106; 42 N. E. 647.
17 Bird v. Swain, 79 Me. 529; 11 Atl. 421.
18 O'Rourke v. Ins. Co., 23 R. I. 457; 91 Am. St. Rep. 643; 57 L. R. A. 496; 50 Atl. 834.
19 Citing West v. Moore, 14 Vt 447; 39 Am. Dec. 235.
20 See Sec. 872 et seq.