"In Aldrich v. Grimes an infant purchased property, with a privilege of return, if it did not answer. After he became of age, the vendor requested him to return it, if he did not intend to keep it. The infant said ' he could not return it then, and did not know as he should; he did not know but he should keep it.' He did keep and use it for two or or three months, when he offered to return it, but the adult declined to receive it, and sued him for the price. The infant was held liable on his note for the price.
"All these cases proceed upon the ground of intention. There must exist an intention to abide by the contract; and a close examination of those cases where the infant has been held not to have ratified the purchase, will able, the retention of which indicates a design to appropriate it to his own use.1 show that a mere neglect to give notice that he repudiates the contract, has not been considered per se, a ratification. Thus, in Smith v. Kelley, 13 Met. 309, an infant bought goods, and three days before he came of age the sellers attached them on a writ against him for their price. The officer took the goods into his own custody, and held them under the attachment until the time of trial. The infant, however, never gave any notice of his intention to repudiate the contract, but it was held that there was not here sufficient evidence of a ratification, the defendant not having the actual possession and custody of the goods, he was not bound to disaffirm the purchase.
"So in Thing v. Libbey, 16 Me. 55 (1839), an infant having purchased property assigned it during his minority bond fide to secure a debt due a third person. The infant remained in possession of the goods some time after he became of age, but as agent for the assignee. He never gave any notice of an intention to disaffirm the contract, but being sued for the goods, was held not to have ratified the purchase.
"The case of Dana v. Stearns, 3 Cush. 372 (1849), bears also upon this point. There, B., a minor, and S., a person of full age, entered into a partnership, to the capital stock of which B. contributed about $900, and which was dissolved by mutual consent, before B. came of age. On the dissolution, it was ascertained that the firm had made about $300, and B. sold and conveyed to S. all his interest in the partnership property, for which he received the note of S. for $1100, secured by a mortgage of personal property, and S. at the same time gave B. an obligation to pay the debts of the firm. After coming of age, B. proved his note against the estate of S., who had taken the benefit of the insolvent law, and also instituted proceedings with a view to enforce his claim under the mortgage. It was held, that by these proceedings B. had not ratified the partnership, and had not made himself liable for the partnership debts.
"The true rule on this subject seems to have been laid down in Hale v. Gerrish, 8 N. H. 374 (1836), that the acts relied upon to constitute a ratification, must be of a character to constitute as perfect evidence of a ratification as would an express and unequivocal promise to pay. In that case, the infant not only did not disaffirm after arriving at full age, but when called upon to pay, said he owed the debt, and that the plaintiff would get his pay, but refused to give his note, as he would be liable to be arrested. This was considered no ratification.
"So, in Ford v. Phillips, 1 Pick. 202 (1822), the infant not only did not give any notice of a disaffirmance, but said, after his majority, that he owed the plaintiff, and would try to get his brother to be bound for it. The contract was held not to be ratified. Goodsell v. Myers, 3 Wend. 479 (1830),
1 N. H. M. F. Ins. Co. v. Noyes, 32 N. H. 345.
§ 119. A ratification has a double effect; it both affirms the original contract, and creates a new one; so that the party to whom the infant is liable may sue upon either.1 But where an action is brought upon the contract of an infant, a ratification or promise, made subsequent to the commencement of the suit, though after his coming of age, will not sustain it.2
§ 120. We shall now consider those contracts which are binding upon the infant, ah initio, and need no ratification. First. Where an infant is authorized, by statute, to make a contract for the public service, as to enlist in the army or navy, with the consent of his parent or guardian, such contract is deemed to be for his benefit, and is neither void nor voidable.3 is to the same effect. There an infant purchased a horse during minority, and gave his note. A year after he became of age he said to a third person, he owed the debt and was going to pay it. He never gave any notice of an intention to disaffirm. Held, he was not bound. Thompson v. Lay, 4 Pick. 48 (1826), is clear to the point of the necessity of an express ratification. Hoit v. Underhill, 9 N. H. 436; Wilcox v. Roath, 12 Conn. 550; Smith v. Mayo, 9 Mass. 62, and many other authorities to the same effect exist. Benham v. Bishop, 9 Conn. 330 (1832), bears strongly upon this point. There, an infant purchased real estate during infancy, for which he gave his note. He remained in possession some time after he became of age, and then submitted the question to arbitration, whether he was bound to pay the note. Neither of these facts was considered a ratification, although the infant gave no notice of repudiation. Daggett, J., pertinently said, in giving judgment, ' An infant buys a horse, carriage, or land, gives his promissory note for the price, and, upon coming of full age, does not return the property, nor offer to return it. To a suit on the note, he pleads infancy, and a new promise is replied;-will that evidence support the issue ?'
"The fact that part payment even of a debt contracted during infancy will not be a ratification, as has been often held (Thrupp v. Fielder, 2 Esp. 628; Hinely v. Margaritz, 3 Barr, 428; Robbins v. Eaton, 10 N. H. 561), would seem to show conclusively that a fortiori, a bare non-disaffirmance would not have any such effect.