§ 105. So, also, where the contract is executed, he may ordinarily disaffirm it at any time; as where he sells any article, he may reclaim it upon tendering the price he paid;4 or if he lease lands, he may receive the rent and suffer the lessee to remain, or he may rescind the contract, and treat the lessee as a trespasser.5 And if he convey by bargain and sale, he may avoid such, conveyance without entry, or he may convey to another person without notice to the first purchaser.6 Again, an infant may avoid his special agreement even though it be an entire contract, when partially executed, and recover a reasonable compensation for services actually performed, in like manner as if no such special agreement had been made.1 But if the other party suffer injury from the failure of the infant to perform his contract, this fact should be taken in reduction of the compensation. And if it should appear that his services were, under the circumstances, of no value, he could recover nothing.2
1 Bro. Abr. Faits, 31; 1 Roll. Abr. 730; Zouch v. Parsons, 3 Burr. 1808; 1 Wooddeson, 400.
2 Heath v. West, 6 Foster, 193; Carr v. Clough, ib. 280; Knox v. Flack, 10 Harris, 337.
3 20 Am. Jur. 257.
4 Willis v. Twambly, 13 Mass. 204; Badger v. Phinney, 15 Mass. 359; Hubbard v. Cummings, 1 Greenl. 13; Roof v. Stafford, 7 Cow. 183; Carr v. Clough, 6 Foster, 280; Wheatly v. Miscal, 5 Ind. 142. See also Baldwin v. Van Deusen, 37 N. Y. 487 (1868).
5 Blunden v. Baugh, Cro. Car. 303, 306.
6 Stearns on Real Actions, 186; Jackson v. Carpenter, 11 Johns. 539; Jackson v. Burchin, 14 Johns. 124. But see Roberts v. Wiggin, 1N. H. 75.
§ 106. But where a contract is completely executed, and it appears that it was beneficial to the infant, and was entered into bond fide, the infant cannot rescind it, unless he can place the other party in statu quo.3 Thus, where money and articles and outfit were advanced to an infant to enable him to go to California and labor, the infant agreeing to give as compensation therefor, one-third of all the avails of his labor, and a settlement was made and the money paid over, it was held that the infant could not rescind the agreement and recover the sum paid, deducting the money advanced and the value of the outfit, - the whole circumstances showing the contract to be perfectly fair and reasonable, and beneficial to the infant, and the proposed arrangements not being such as would put the other party in statu quo.4 And it is often declared that an of the contract did not indicate any fraudulent advantage taken of him, and were sanctioned by the guardian, and the contract was wholly performed on both sides, it was held that the infant could not maintain a quantum meruit for his services merely by showing that, by reason of the events which had happened, his services were worth more than the stipulated compensation.1 But it is held that an infant may avoid his assignment without tendering the consideration received.2 And the later and more carefully considered authorities declare that if a party is not bound by his contract for want of sufficient capacity to make it, as in the case of infants, persons non compotes, and the like, such party is not bound to return the consideration received, before he can sustain an action to recover back the consideration paid.3
1 Moses 9. Stevens, 2 Pick. 332; Vent v. Osgood, 19 Pick. 572; Jud-kins v. Walker, 17 Me. 38; Bishop v. Shepherd, 23 Pick. 492. But see Weeks v. Leighton, 5 N. H. 343; and M'Coy v. Huffman, 8 Cow. 84. But see Whitmarsh v. Hall, 3 Denio, 375.
2 Thomas v. Dike, 11 Vt. 273; Moses v. Stevens, 2 Pick. 332.
3 If an infant advances money to his brother, with directions to use it for the support of their parents, and it is so used by him, it cannot afterwards be recovered back by the infant on arriving at full age. Welch v. Welch, 103 Mass. 562 (1870).
4 Breed v. Judd, 1 Gray, 457. The court said, " But what was the contract? In substance and effect, it was that the defendants should furnish the outfit, and that the plaintiff should furnish his labor and time, and that of the fruits of the enterprise the plaintiff should have two-thirds and the defendants one-third. The amount of the outfit furnished does not appear, but it does appear that the contract was reasonable and beneficial to the infant. No time was prescribed for the plaintiff to be absent. He was, in fact, absent nine months. The contract was fully executed; the defendants received their share of the fruits of the enterprise, the plaintiff retained his. The case has been argued as if the gold-dust were the result of the plaintiff's labor alone; whereas it was the result of the union of the labor of the plaintiff and the capital of the defendants. The offer of the plaintiff to deduct, infant must restore what he has received, if he has it when he brings an action to recover what he has paid; if not, he must allow what it was worth by way of deduction from his claim.1 So, also, where a special contract has been made and executed on both sides, the infant cannot, upon coming of age, claim to receive additional compensation, if there were no fraud or overreaching in the bargain. Thus, where an infant of fourteen years of age entered into an agreement to work until he should arrive at full age, in consideration of being furnished with board, clothing, and education, during such time, and the terms from the sum to be recovered, the amount paid for his outfit and expenses, would not place the parties in statu quo. The defendants took the risk of the life, health, and good fortune of the plaintiff. If the enterprise had wholly failed, they would have had no claim upon the plaintiff for remuneration, and the capital advanced would have been wholly lost. To make the defendants whole, they must be compensated for the risk assumed, and under all the circumstances of the case the sum advanced was deemed a reasonable consideration for a third part of the proceeds of the plaintiff's labor. The measure of compensation is to be determined, not by the result, but by the circumstances existing when the agreement was made. It may be suggested that this construction of the agreement makes the contract of the parties one of partnership, and that by a contract of partnership an infant cannot be bound. So long as the contract remains executory, this is true. After the plaintiff had received the defendants' money for his outfit and voyage, he could not have been compelled to perform the contract and go to California. Upon his arrival there, he might have eleeted to rescind the contract. He might, at his own pleasure, have terminated the agreement. But he chose to do none of these, but to proceed and perform his agreement, and to pay over to the defendants their just proportion of the proceeds of the business. And we know of no ground, upon which, after arriving at full age, he can change the entire character of a contract so made and executed, treat the money so advanced by the defendants as a simple loan, and claim for himself all the fruits of an enterprise in which their money and his labor were the common stock, and this when the contract, as origmally made, is found to have been fair, reasonable, and even beneficial to the plaintiff." " If the contract set up by the defendants could, even after being fully executed, be rescinded, it seems to be conceded this could only be by putting the defendants in statu quo. If this includes, as seems to be obviously just it should, a fair compensation for the risk they necessarily incurred, the result would be only to come back to the starting-point, the jury having found the agreement, under all the circumstances, a reasonable one."