6 Hussey v. Jewett, 9 Mass. 100; Ford v. Phillips, 1 Pick. 203; Harmer v. Killing, 5 Esp. 102; Smith v. Mayo, 9 Mass. 64; Robbins v. Otis, 1 Pick. 368; Millard v. Hewlett, 19 Wend. 301; Hinely v. Margaritz, 3 Barr, 428. But it may well be doubted whether the promise must have been made with knowledge of non-liability. See Morse v. Wheeler, 4 Allen, 570, holding the contrary on a review of the cases.
7 Brooke v. Gaily, 2 Atk. 34; Harmer v. Killing, 5 Esp. 102. See Big-elow v. Grannis, 2 Hill, 120.
§ 116. A ratification may be either absolute or conditional. If it be the latter, the terms of the condition must have happened or been complied with before an action can be sustained.4 Thus, on a promise to pay a debt, when "he is able," the ability of the party must be proved in order to charge him.5 Or if he promise to pay a note upon the happening of a certain event, such event must be proved to have happened, or the party is not liable. Or if a party promise to pay a certain part of a debt, he is only bound to the extent of the new promise.6
§ 117. But if the contract be executed, any slight acknowledgment of liability or admission of the contract is a sufficient ratification; for it is the sound policy of the law to suffer contracts, already completed, to remain undisturbed, whenever they are not founded on fraud or duress, while it shrinks from enforcing the performance of future acts upon executory contracts made during infancy. When any acknowledgment of liability is made, or can be implied with certainty from the acts or words of the parties, the law considers this a sufficient ratification of that which is completed. Thus, if an infant mortgage his land, and after he comes of age, convey the same land, subject to the mortgage, he thereby confirms the mortgage.1 So, if, after attaining majority, he redeliver a deed made during infancy.2 In many cases, mere acquiescence or silence affords a conclusive presumption of ratification, where it is susceptible of such an interpretation.3 Thus, where a contract is voidable, and the benefit is a continuing one, the infant will be bound by it, unless he expressly disaffirm it upon coming of age.4 So, if, after coming of age, he accept rent upon a lease made during his infancy, it is a ratification of the lease, and he cannot avoid it.5 So, if he make a lease for a term extending beyond the time of his infancy, and after coming of age he make no objection, and do no act contradicting such a presumption, his acquiescence will be treated as a ratification;6 since he is receiving a continuing benefit from the continuance of the lease, and thereby acquiring a claim for rent against the lessee, and it is this circumstance, rather than silence, which amounts to a ratification. So, if, after coming of age, he retain, without objection, premises leased to him, he will be understood to affirm the lease.7 So, if he retain possession of land conveyed to him during his minority,8 or convey it to a third person, or continue to act, as if the land were his own property, it will be a ratification of the conveyance.1 And even a repudiation of the tenancy after arriving at majority will be of no avail, if the tenancy be not avoided before the rent falls due.2 And this, too, though the infant be assignee of a lease.3 But if an infant buys land and gives his note for it, and subsequently, but before his majority, sells the land, and retains the proceeds after he is of age, this is not a ratification of his note given on the original purchase.4 And it is held that the mere receipt of rents from improvements made upon a defendant's land during his infancy, does not constitute a ratification of the contract under which they were made, so as to operate as a lien upon his property by virtue of a mechanics' lien law.5 However, if during his infancy he profess to be a partner in a particular firm, it has been held that he will be liable on contracts made by the firm after he has arrived at maturity, unless he expressly deny and disaffirm the partnership at that time,6 although he ceased to be a partner before attaining his majority. So, also, where an infant has made purchases, if, after coming of age, he treat the property purchased as his own, when it is in a condition to be restored, and is of value,
1 Goodsell v. Myers, 3 Wend. 479; Hoit v. Underhill, 10 N. H. 436.
2 Mawson v. Blane, 10 Exch. 206; 26 Eng. Law & Eq. 560, supra.
3 2 Stark. Evid. 941; Hutton v. Mansell, 3 Salk. 16, 64; 6 Mod. 172; Wightman v. Coates, 15 Mass. 1; Bobo v. Hansell, 2 Bailey, 114.
4 Thompson v. Lay, 4 Pick. 49; Martin v. Mayo, 10 Mass. (Rand's ed.) 141, note; Bobbins v. Otis, 1 Pick. 370; Everson v. Carpenter, 17 Wend, 419.
5 Thompson v. Lay, 4 Pick. 49; Proctor v. Sears, 4 Allen, 95 (1862).
6 Green v. Parker, cited 1 Esp. N. P. 164; Peake's Evid. 260 (2d ed.); Bobo v. Hansell, 2 Bailey, 114. See Martin v. Mayo, 10 Mass. (Rand's ed.) 141, and note.
1 Boston Bank v. Chamberlin, 15 Mass. 220; Deason v. Boyd, 1 Dana, 45. See Middleton v. Hoge, 5 Bush, 478.
2 Davidson v. Young, 38 111. 145 (1865).
3 Brown v. Caldwell, 10 S. & R. 114; Holmes v. Blogg, 8 Taunt. 35; 1 Moore, 466; Goode v. Harrison, 5 B. & Al. 147; Lawson v. Lovejoy, 8 Greenl. 405. See Davidson v. Young, 38 111. 145 (1865).
4 Richardson v. Boright, 9 Vt. 368. See Irvine v. Irvine, 9 Wall. 626. But see Carrell v. Potter, 23 Mich. 377 (1871), where it was held that the retention of the consideration for five months, during most of which time the infant was absent from the State, was not alone enough to raise an inference of ratification.
5 Ashfield v. Ashfield, W. Jones, 157, affirmed in the Exchequer Chamber by all the judges; Latch, 199; Godb. 364; Story v. Johnson, 2 Younge & Coll. 586; Barnaby v. Barnaby, 1 Pick. 224.
6 Smith v. Low, 1 Atk. 489; Van Dorens v. Everitt, 2 Southard, 460.
7 Ketsey's Case, Cro. Jac. 320; Kirton v. Eliott, 2 Bulst. 69; 1 Roll. Abr. Enfants (K), 731; Evelyn v. Chichester, 3 Burr. 1719; Baylis v. Dineley, 2 M. & S. 681; Holmes v. Blogg, 8 Taunt. 35, 37.