1 Burnham v. Seaverns, 101 Mass. 360 (1869).
2 Sterling v. Adams, 3 Day, 411.
3 Liverpool Association v. Fairhurst, 9 Ex. 422; Johnson v. Pye, 1 Sid. 258; s. c. 1 Keb. 913; Wright v. Leonard, 11 C. B. (n: s.) 258; Bartlett v. Wells, 1 Best & S. 836; Cannam v. Farmer, 3 Ex. 698; Brown v. McCune, 5 Sandf. 225; Prescott v. Norris, 32 N. H. 101; Merriam v. Cunningham, 11 Cush. 40; Burley v. Russell, 10 N. H. 184. The cases to the contrary are Cox v. Kitchin, 1 Bos. & P. 338; Word v. Vance, 1 Nott & M. 197; and Kilgore v. Jordan, 17 Tex. 341. See also Fitts v. Hall, 9 N. H. 441, explained in Burley v. Russell, supra; Keen v. Coleman, 39 Penn. St. 299; Wallace v. Morse, 5 Hill, 391; Towne v. Wiley, 23 Vt. 361; Badger v. Phinney, 15 Mass. 359. The ground upon which the defence of infancy or coverture in such cases is allowed, is that otherwise such persons would lose the protection which the law seeks to afford them during their disability. In Merriam v. Cunningham, supra, Mr. Justice Bigelow said:
§ 112. We next come to the consideration of the subject of Ratification by an Infant. A void contract is incapable of ratification; for no promise can ever revive that which never had any existence. But a contract, which is merely voidable, may be ratified when the infant attains the age of legal maturity, without any new consideration.1
§ 113. No binding ratification of a contract can be made by the infant, until he comes of age, except perhaps in the case of a suit by a minor against an adult, on a contract not executed by the minor, which has been allowed as an exception,
"The plaintiff seeks to avoid the defendant's plea of infancy in the present case by proof that the defendant fraudulently represented himself to be of full age, and thereby obtained credit for the keep of the horses, to recover the price of which this action of assumpsit is brought. But it appears to us that no such answer to a plea of infancy can be allowed without overturning the well-established rules of law applicable to the contracts of minors. The plaintiff seeks to recover upon a contract which, upon plea and proof, is legally avoided. The fraud of the defendant, if ever so clearly shown, does not restore validity to his promise, or in any way enhance its obligation; it is the contract which forms the sole right of the plaintiff to recover in this suit, and no liability upon it, as such, can be maintained against the defendant, who has established its legal invalidity. If the position assumed by the plaintiff is sound, then the result would be that a plaintiff in an action of assumpsit on a contract which the law holds void, would recover damages for an injury caused by the fraudulent misrepresentations of the defendant. It is manifest that no such confusion of rights and remedies can exist in the law. Besides, in an action of assumpsit the measure of damages is the amount which the defendant promised to pay by his contract; but for fraudulent representations the plaintiff could recover only the damages actually sustained, which might, and often would be, much less than the amount due on the contract, for the very reason that the infant may have been overreached, and promised to pay more than an equivalent for that which he received by the contract. The doctrine contended for by the plaintiff would effectually deprive infants of that protection which the law sedulously seeks to afford them in their dealings." What the rule in equity may be does not appear to have been fully decided. In Nelson v. Stocker, 5 Jur. (n. s.) 262 (1859), Stuart, V. C, refused to allow the defendant to set up the plea of infancy, but the case was one of acquiescence after majority as well as misrepresentation of age. The Vice-Chancellor does, however, say: " Therefore, on the ground of misrepresentation, if it stood upon no other ground, there would be enough to found an equity in favor of the plaintiffs." See also Bartlett v. Wells, 1 B. & S. 836 (1862); De Roo v. Foster, 12 C. B. (n. s.) 272 (1862); Bigelow on Estoppel, 485-493, and cases cited. 1 Grant v. Beard, 50 N. H. 129 (1870).
- upon the ground, that otherwise there could be no consideration to support the contract.1
§ 114. There is a distinction between those acts and words which are necessary to ratify an executory contract, and those which are sufficient to ratify an executed contract. In the latter class of cases, any explicit acknowledgment of liability will operate as a ratification. But, in order to ratify an executory agreement made during infancy, there must be not only an acknowledgment of primary liability, but an express promise, voluntarily and deliberately made by the infant upon his arriving at the age of maturity.2 No act or word, therefore, which does not unequivocally imply a new and primary promise by the infant himself, will be sufficient to create a liability on his executory contract.3 Thus, where a debt, settle." 1 So, where an infant wrote after coming of age, - "I am sorry to give you so much trouble, but will, without neglect, remit to you in a short time," it was held to be a sufficient ratification of his contract.2 A fortiori, if an infant, who has accepted a bill of exchange, or made a promissory note during his infancy, sign, after his attaining his majority, a written order or authority to his banker or agent, directing a payment thereof, this is a ratification which renders him liable in a suit brought on the note.3 But where an infant, having been supplied with goods, on arriving at majority, wrote at the end of the account sent him by the seller, " Particulars of account to the end of 1867, amounting to £162 11s. 6d., I certify to be correct and satisfactory," this was held not to constitute a ratification, within the statute.4 Continuance, for a month after majority, in an employment for an entire term, is a ratification of the contract; and if the party then abandon the contract before his term of service expire, without cause, he cannot recover for the work performed during his infancy.5