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.
At early Common Law it was held, or at least asserted, that a contract entered into by one who was then intoxicated was absolutely binding.1 A reaction from this early strictness resulted in holding such contracts void.2 At Modern Law, however, the weight of authority is clearly to hold such contracts voidable.3 The note of one voluntarily intoxicated is not absolutely void.4 It is therefore error to charge so as to eliminate the question whether there had been a rescission or ratification by charging that the former was unnecessary and the latter impossible.5 In some jurisdictions it seems to be held that intoxication is of no legal effect unless the adversary party either procured it, or took an unfair advantage of it.6 Whether it is necessary, in order to make the contract voidable, that the adversary party should know of the intoxication is in some dispute on the authorities. It has been said not to be necessary,7 but in a recent case it was assumed apparently that drunkenness unknown to the adversary party would be ineffectual. In that case a written guaranty was obtained from an illiterate man who was drunk, and sent to one who did not know how it was obtained, and who extended credit thereon. The Court of Appeals decided the case solely on the question of the negligence of the maker.8 Drunkenness is ordinarily apparent to those in personal communication with the drunken man, long before it reaches that stage where it affects contractual capacity. Probably for this reason the effect of the knowledge of the adversary has rarely been decided. Analagous to this is the question of the right of the drunken person to avoid where the contract has passed into the hands of a bona fide purchaser for value. If the instrument is negotiable it has been held that in such case the right to avoid the contract is lost.9 In principle it is distinguished from the case of the infant or the insane person by the fact that the disqualification of drunkenness is one voluntarily assumed.10 In Michigan a somewhat different view seems
167; 16 Am. Dec. 691; Wiggles-worth v. Steers, 1 H. & M. (Va.) 70; 3 Am. Dec. 602.
3 Davidge v. Crandall, 23 111. App. 360; Armstrong v. Breen, 101 Ia. 9; 69 N. W. 1125; Belcher v. Belcher, 10 Yerg. (Term.) 121.
4 Byrne v. Long (Ky.), 15 S. W. 778; Johnson v. Phifer, 6 Neb. 401.
5 Wright v. Waller, 127 Ala. 557; 54 L. R. A. 440; 29 So. 57; Taylor v. Purcell, 60 Ark. 606; 31 S. W. 567. "One may sufficiently understand a contract and the nature and effect of his entering into it to be fully bound by it although he be capable of a very much less consideration of it than would be bestowed by a man of ordinary prudence." Wright v. Waller, 127 Ala. 557, 562; 54 L. R. A. 440; 29 So. 57.
6 Ralston v. Turpin, 129 U. S. 663; Watson v. Doyle, 130 111. 415; 22 N. E. 613; Coombe v. Carthew, 59 N. J. Eq. 638; 43 Atl. 1057.
1 Yates v. Boen. 2 Stra. 1104. "As for a drunkard, who is voluntarius Daemon, he hath (as hath been said) no privilege thereby; but what hurt or ill soever he doeth, his drunkenness doth aggravate it." Co. Litt. 247a; a remark which should be limited to certain branches of the law of torts and crimes.
3 Pickett v. Sutter, 5 Cal. 412; Bates v. Ball, 72 111. 109; Joest v. Williams, 42 Ind. 565; 13 Am. Rep. 377; Hawley v. Howell, 60 Ia. 79; Franks v. Jones, 39 Kan. 236; 17 Pac. 663; Carpenter v. Rodgers, 61 Mich. 3S4; 1 Am. St. Rep. 595; 28 N. W. 156; Wright v. Fisher, 65 Mich. 275; 8 Am. St. Rep. 886; 32 N. W. 605; Van Wyck v. Brasher, 81 N. Y. 260; French v. French, 8 Ohio 214; Baird v. Howard, 51 O. S. 57; 22 L. R. A. 846; 36 N. E. 732; Bush v. Breinig. 113 Pa. St. 310; 57 Am. Rep. 469; 6 Atl. 86; Birdsong v. Birdsong, 2 Head. (Tenn.) 289; Barrett v. Buxton, 2 Aikens (Vt.) 167; 16 Am. Dec. 691; Wigglesworth v. Steers, 1 H. & M. (Va.) 70; 3 Am. Dec. 602. But in Hunter v. Tolbard, 47 W.
4 Wright v. Waller, 127 Ala. 557; 54 L. R. A. 440; 29 So. 57.
5 Carpenter v. Rodgers, 61 Mich. 384; 1 Am. St. Rep. 595; 28 N. W. 156.
6 Rottenburgh v. Fowl (N. J. Eq.), 26 Atl. 338; Burroughs v. Richman, 13 N. J. L. 233; 23 Am. Dec. 717.
7 Hawkins v. Bone, 4 F. & F. 311.
8 Page v. Krekey, 137 N. Y. 307; 33 Am. St. Rep. 731; 21 L. R. A. 409; 33 N. E. 311.
9 State Bank v. McCoy, 69 Pa. St. 204; 8 Am. Rep. 246; McSpar-ran v. Neeley, 91 Pa. St. 17; Smith v. Williamson, 8 Utah 219; 30 Pac. 753.
10 "If a man voluntarily deprives himself of the use of his reason by strong drink, why should to have been taken, holding that drunkenness must either extend to such total incapacity that no assent at all could be given or else be complicated with fraud in order to amount to a defense against a bona fide holder. But these remarks are in the nature of an obiter as the record did not disclose any such evidence and a judgment in favor of the makers of the note was reversed for want of evidence to support it.11