1 Locke v. Smith, 41 N. H. 346; Heath v. Stevens, 48 N. H. 251 (1869). But the authorities are not agreed on this point.
§ 107. Where the contract is executory on the part of the adult, if it be disaffirmed by the infant, he is also discharged from the performance of his part of the agreement. And if, in such a case, the infant have advanced the consideration, he may, upon disaffirmance of the contract, recover it. Thus, where an infant purchased a share in the defendant's trade, and advanced a certain sum thereupon, to be retained by the defendant as a forfeiture, in case the infant should fail to fulfil an agreement to enter into partnership with the defendant, and he did fail so to do it, it was held that the infant could recover it.4 But where the contract is executory on the part of the infant, and has been executed by the adult, and the infant refuses to complete his contract, it has been said that there is no remedy by which the adult can recover the consideration paid.5 But the cases do not support this assertion in its full be tortious, and an action of replevin would therefore lie.1 The very ground upon which the infant ever held the goods, namely, the contract, being gone, he can have no legal title to them afterwards. For the same reasons, where money is paid by an adult upon an executory contract to be performed by the infant, he cannot compel the infant to perform it, although the money has been expended by the infant.
1 Stone v. Dennison, 13 Pick. 1. See also Breed v. Judd, 1 Gray, 455, 459.
2 Briggs v. McCabe, 27 Ind. 327 (1866). See Miles v. Lingerman, 24 Ind. 385 (1865), holding the same doctrine as to the case of a disaffirmance of a deed of real estate by an infant.
3 See Bartlett v. Drake, 100 Mass. 176 (1868); Price v. Furman, 27 Vt. 268; Chandler v. Simmons, 97 Mass. 508; Gibson v. Soper, 6 Gray, 279. But see Bartlett v. Cowles, 15 Gray, 445, and cases cited.
4 Corpe v. Overton, 10 Bing. 252; 3 M. & Scott, 738. See Dinsmore v. Webber, 59 Maine, 103 (1871).
5 20 Am. Jurist, 260; Shaw v. Boyd, 5 S. and R. 309, where an infant received $500 for giving a bond to release dower, and yet recovered extent. The true rule seems to be, that when articles are furnished to the infant, which do not come within the definition of "necessaries," and which are consumed or parted with,-or when money is lent, which is expended by the infant,- that the other party has no remedy to recover an equivalent for the goods or the money, if the specific consideration given by him have been parted with, or be incapable of return.1 But wherever the specific consideration, whatever it be, exists, and remains in the hands of the infant, at the time of his disaffirmance of the contract, and is capable of return, the infant is bound to give it up, and he is treated as a trustee of the other party, if the contract be made originally in good faith.2 The ground of such a distinction is, that in the first case, the goods or money cannot be returned, and to make the infant liable therefor, in damages, merely because they had been used by him, would be to deprive him of his privilege of affirming or avoiding his contract entered into bond fide, when it was impossible for him to return the actual consideration. But in the other case, where the actual consideration remains in the hands of the infant; and can be returned, it would be a tort in him to retain it, and his privilege is, as Lord Mansfield has said, to be used as a shield and not as a sword. The moment the infant disaffirms a contract, the parties stand upon the same footing, and the rights to property in the subject-matter of the contract remain the same, as if no contract had been made. In the one case, then, upon disaffirmance of the contract, the subject-matter, as between these parties, would not be in existence, and could not be returned, and the damage must be borne by him who incurred the risk. But, in the other case, the subject-matter would belong to the adult as much as it ever did, and the retaining of it by the infant would dower without refunding the money. Crymes v. Day; 1 Bailey, 320; Jones v. Todd, 2 J. J. Marsh. 361.
1 Probart v. Knouth, 2 Esp. 472, note; Earle v. Peale, 1 Salk. 386; Darby v. Boucher, 1 Salk. 279.
2 Badger v. Phinney, 15 Mass. 359. In Badger v. Phinney, the ground of the decision seems to have been that the defendant had been guilty of a fraud in stating he was of age, and for that reason the plaintiff might avoid the contract. Willis v. Twambly, 13 Mass. 204; Reeve, Dom. Rel. 245.
§ 108. Every person deals with an infant at arm's length, at his own risk, and with a party for whom the law has a jealous watchfulness. But although an adult cannot enforce an executory contract, upon which he has advanced the consideration, nor recover in an action of assumpsit, where the specific and identical consideration has been parted with by the infant; yet this rule operates in some measure reciprocally; for if the infant have already advanced money upon a contract which is executory on the part of the adult, he cannot disaffirm it and sue the other party for the advance, if it were paid on a valuable consideration which has been partially enjoyed, and especially if he had received the benefit of his contract.2 As, where an infant advanced money on a lease, and subsequently, on coming of age, disaffirmed it and sued the lessor for the sum advanced; it was held, that he could not recover.3 Where the contract is executed on both sides, an infant, when he comes of age, cannot disaffirm it, without returning the consideration,4 unless he has disposed of it during infancy;5 for although, if the consideration on the part of the infant had not been-paid, it could not be recovered, because he is an irresponsible person, yet it is but just and equitable, that if he has only paid for what he has enjoyed, he should not be entitled to reclaim his money without refunding the consideration of it. In such a case, if he could, it would clearly operate as a direct fraud.1 The law does not render an infant responsible for his promises to do; but it does make him liable for his acts already done, when he has received the equivalent therefor, and cannot return it. But elsewhere it is held that an infant may avoid his contract and recover back the consideration advanced.2 So he may recover for labor performed under a contract he refuses to perform.3