within ten years after the cause of action ac- cause at last the ratification in each case crued"

-in the course of the opinion said:

"The deed of an infant conveying real estate, where any valuable consideration passes to him, is, as well settled by this court, not absolutely void, but voidable merely. * **And he has an election, after his disability is ended, to affirm or avoid it. To confirm, it is not indispensable that he should reacknowledge the first or execute a new deed, but he may do so after full age by an act in pais. But conveyances of an infant are not so easily ratified as his purchases, and something more than bare recognition or silent acquiescence is necessary to a binding confirmation, unless prolonged for the statutory limitation. There must be some positive act or words of the minor from which his assent of the deed executed during his minority may be inferred. * * Within what time such an action must be commenced, and whether there is in fact any express statutory limitation on the subject, are questions not hitherto passed on by this court. The authorities generally agree that the election to avoid such deed must be made by the infant within a reasonable time after he arrives at full age. But what is a reasonable time cannot be determined by any certain or fixed test, and must therefore be left for the discretionary determination of the court, which is not in accordance with the modern and wiser policy of our statutes, fixing in every case a definite limit to litigation, and a period at which owners of property may repose in security. *** In our opinion, therefore, while a party may, before the expiration of that period, by act bind himself to a confirmation, he cannot, after 10 years from his arrival at full age, maintain an action to avoid and set aside a deed made while an infant. And as this action was not commenced within that statutory limit, the court erred in rendering judgment for the plaintiff, and it is reversed, with directions to dismiss the petition."

rests upon the ground that it would be inequitable and unjust to permit an infant after arriving at age and with a full knowledge of the transaction to accept the proceeds of his land sold during infancy, and then, after the expiration of many years after reaching his majority to repudiate what he had done with a full understanding of the facts. Supporting this principle is Norris v. Wait, 2 Rich. Law (S. C.) 148, 44 Am. Dec. 283, where there was a wrongful and void sale of an infant's property, and he sought to recover it after reaching his majority, although he received the benefits of the sale after becoming of age, and the court in denying a recovery said:

"So, too, I have no doubt, if one sell the property of an infant, and after the infant attains to full age, pays him for it, that the infant could not recover it from the purchaser; and that would be on the ground that having accepted the price from him who had wrongfully sold, he thereby consented to waive the illegality of the sale, and make it valid by such an unequivocal act of assent. But before he can be cut off from a clear legal title to property illegally sold, it must be made clearly to appear that he has received, in money or property, an equivalent. The burden of showing this rests on the defendant, and if he fails to establish it clearly he cannot expect to succeed."

To the same effect is Barham v. Turbeville, 1 Swan (Tenn.) 437, 57 Am. Dec. 782. Another case is Penn v. Heisey, 19 Ill. 295, 68 Am. Dec. 597, where the court, in holding that an infant who, after becoming of age, had received the proceeds of a void sale of his land with full knowledge of the facts was thereby estopped to recover the land, said:

"The application of this principle does not depend, as we understand it, upon any supposed distinction between a void and a voidable sale. If the sale be the one or the other, receiving the money, or its proceeds in other valuable property, with a knowledge of the facts, touches the conscience of the party, and therefore establishes, the right of the party claiming under such

Other cases to the same effect are Combs v. Noble, 58 S. W. 707, 22 Ky. Law Rep. 736; Spicer v. Holbrook, 96 S. W. 571, 29 Ky. Law Rep. 865; Syck v. Hellier, 140 Ky. 388, 131 S. W. 30; Henson v. Culp, 157 Ky. 442, 163 S. W. 455. Another case presenting facts very similar to this is Sudduth v. Rowland, 164 Ky. 351, 175 S. W. 646. In that case there was a void sale of infant's land, but sale, in one case as well as in the other. The after the infant became of age he accept-proof in this case shows that the plaintiffs knew ed the proceeds and thereafter sought to recover the land, and the court said that the infant had ratified the void sale by the acceptance of the proceeds after his majority, and his long acquiescence in the settlement in which he accepted his share of the proceeds. In that case, the court did not find it necessary to apply the 10-year statute, as the infant had waited much longer than 10 years before bringing his suit, and his estoppel was put upon the ground of long acquiescence. To the same effect is Williamson v. Mann, 134 Ky. 63, 119 S. W. 232.

[8] Now, it seems to us that there is no sound reason why the principle of ratification and estoppel should not as effectively apply to cases where the sale of an infant's land is void as to cases in which it is merely voidable. If an infant can, by his conduct, after arriving at age, ratify and confirm a voidable sale of his land, he should likewise be bound by his ratification of a void sale, be

all the facts respecting the sale of the lot by their guardian, and the purchase and conveyance of other lands out of the proceeds. An equitable estoppel prevents a party from using a title which, in good conscience, ought to inure to the use of another, and if such a case was ever preare, and should be, favored in law, honor, and sented, we think this is one. Such estoppels conscience, for the truest and best of reasons, that a man, having received a benefit in one character, the value of the thing, or of the property, shall not afterwards receive the thing or property itself in the same or another character. This principle so equitable and legal, runs throughout all the transactions and contracts of civilized life."

To the same effect is Schnell v. City of Chicago, 38 Ill. 382, 87 Am. Dec. 304.

[9] We have therefore no difficulty il setting down that where the land of the infant is sold and conveyed without authority during his infancy, and he accepts the proceeds of the sale after reaching his majority, and after having actual knowledge of the facts, he will, by this act of affirmance be thereafter

administrator charged himself with the proceeds, then the judgment in that case is not conclusive upon the children who were at the time infants, and this upon the principle that infants are not bound by the judgment in a case except as to matters that were put in issue, or that appeared in the case.

Another question in the case relates to an issue concerning improvements put on the property by Dusing, the purchaser, but this question of improvements we will not undertake to determine in the present state of the record. On a return of the case the parties may, if they like, reform their pleadings so as to clearly present the question whether Mary, Frederick, Marguarette, and Norbert are estopped, upon the principles we have laid down, from maintaining the suit, and the further issue as to improvements.

estopped to recover from the purchaser the, sel, as administrator with the will annexed, land, and whether he accepted the proceeds sold this property and in his settlement as with actual knowledge of the facts or not, he will be barred after the expiration of 10 years from the acceptance from bringing an action to recover the land. Accordingly, the right of Henry, Leo, Clara, and William, all of whom reached their majority more than 10 years before the commencement of this action, to maintain this suit is barred by the statute if they accepted any part of their share of the proceeds of the county court settlement more than 10 years before this suit was brought, or at any time before it was brought with actual notice that a part of it was the proceeds of this property, or with actual knowledge that the administrator had charged himself with the proceeds of the property. As to Mary, Frederick, Marguarette, and Norbert, 10 years had not elapsed between the date of their majority and the bringing of this suit, but, nevertheless, they would be estopped to maintain the action if, after reaching their majority, they received or accepted their share, in whole or in part, of the proceeds of this property with actual knowledge that the share received by them was derived in whole or in part from the sale of this property, or with actual knowledge that the administrator had charged himself with the proceeds of the property.

[10] Another question in the case is the effect of the suit brought in the Kenton circuit court by the administrator for the purpose of settling his accounts, to which suit all of these children were made parties, and properly brought before the court. It is the contention of counsel for Dorsel and Dusing that the judgment in this settlement case, which was rendered in 1911, and which stands unreversed and unmodified, is a bar to the prosecution of this action entirely independent of and without regard to the county court settlement or the acceptance of the proceeds of that settlement. Whether it was or not depends on whether the pleadings, exhibits, or evidence in this suit fully disclosed the facts connected with the sale of the property in question, and that Dorsel had accounted for the proceeds in his settlement. If these facts were fully shown by the record, then all the children who were parties to that suit, and before the court, are bound by the judgment, although some of them, at the time, may have been infants, because a judgment duly and regularly entered is as binding upon infants before the court as it is on adults subject to the remedies allowed infants. Cox v. Interstate Coal Company, 157 Ky. 373, 163 S. W. 231;. Cole v. Lewis, 159 Ky. 747, 169

S. W. 490.

Wherefore the judgment is reversed for proceedings not inconsistent with this opinion.

(180 Ky. 539) SHEFFIELD-KING MILLING CO. v.

SORG.

(Court of Appeals of Kentucky. May 14, 1918.) 1. JUDGMENT 199 (1)-JUDGMENT NON OBSTANTE VEREDICTO.

Where plaintiff, at conclusion of evidence, have been given, and verdict went for defendasked for peremptory instruction, which should ant, plaintiff could not have judgment non obstante veredicto, but only a new trial, for error in refusing the peremptory instruction. 2. SALES 53(1)-ACTIONS FOR BREACH QUESTIONS FOR JURY.

In action for damages for breach of contract to buy flour, where defendant admitted execution of the contract, pleading that it was not to become effective until flour already bought proved satisfactory, it was error to submit to the jury the issue whether the contract was made.

3. SALES 182(1)-ACTIONS FOR BREACHQUESTIONS FOR JURY.

In action for damage for breach of contract to buy flour, in the absence of pleading or proof submit to the jury the issue whether it was that the flour was worthless, it was error to worthless, so as to prevent recovery. 4. EVIDENCE 129 (1)-SIMILAR FACTS.

Since worthlessness of one carload of flour of the same brand, regardless of time of manuis no evidence of worthlessness of another load facture or quality of wheat used, evidence of inferior quality of one shipment is not admissiwithout showing identical conditions of manuble to show inferiority of another shipment, facture.

5. SALES 387-ACTION FOR BREACH-PEREMPTORY INSTRUCTION.

In action for damages for breach of contract to buy flour, where execution of contract was admitted, and there was neither pleading nor proof that the flour was worthless, and the only defenses were fraud and a counterclaim arising from a prior transaction, and neither had supporting evidence, plaintiff was entitled to peremptory instruction.

But, unless the facts concerning the sale of this property were so fully manifested by the record as that any person, upon an inspection of it, could have discovered that Dor- County.

Appeal from Circuit Court, Franklin

Action by the Sheffield-King Milling Company against F. J. Sorg. Judgment for defendant, and plaintiff appeals. Reversed and

remanded for new trial.

L. W. Morris, of Frankfort, and H. L. Hoidale, of Minneapolis, Minn., for appellant. L. F. Johnson and Scott & Hamilton, all of Frankfort, for appellee.

set out in the second paragraph herein, and that by reason of the inferior quality of said flour the defendant's trade was damaged in the sum of $500, for which he prays judgment against the plaintiff as a counterclaim."

Defendant subsequently filed an amended answer, containing the following allegations: "The defendant says that the alleged contract between plaintiff and defendant was executed between them in Frankfort, Ky., on the Sth day of July, 1912, and that the same was proCLAY, C. The Sheffield-King Milling Com-cured by covin, misrepresentation, and fraud, pany brought this suit against F. J. Sorg, to as before stated, and it contemplated that the recover damages for the breach of a contract said contract should be fully executed and performed in the state of Kentucky. * Defor the purchase of flour. A trial before a fendant says that, at the time he signed the jury resulted in a verdict and judgment for contract sued on in plaintiff's petition, he did the defendant, and plaintiff appeals. not know that plaintiff had not complied with the law of Kentucky in the respect hereinabove set out."

The suit is based on a written order for 1,260 packages of flour at the price of $5 per barrel, to be delivered in the months of October, December, and January following. The contract is dated July 8, 1912, and purports to have been signed by Sorg. Sorg refused to receive the flour, and plaintiff was compelled to sell it on the market at a loss of $878.38. It appears that on June 19, 1912, defendant purchased from plaintiff 420 packages of flour at the price of $5.50 per barrel, to be shipped on directions to be furnished the defendant on or before July 15, 1912. In defense of the action sued on, defendant made in his original answer the following denial

of the execution of the contract:

"The defendant, F. J. Sorg, by way of answer and counterclaim, herein admits section 2 of plaintiff's petition herein. The defendant denies that on the 8th day of July, 1912, or at all, other than hereinafter set out, he made or entered into a contract in writing. He denies that any contract between said parties was on the 13th day of July, 1912, or at all, acknowledged, accepted, or confirmed by the plaintiff. Defendant denies that he contracted or agreed with plaintiff to purchase from plaintiff a quantity of Gold Mine flour equivalent in the total to 630 barrels of the net weight of 196 pounds each, or at all except as hereinafter set out."

The second and third paragraphs of the original answer are as follows:

"For further answer herein the defendant, F. J. Sorg, says that the contract sued on was procured by fraud, covin, and misrepresentation, and that the said fraud, covin, and misrepresentation consisted in an agreement on the part of the agent of plaintiff who was acting in the apparent scope of his authority not to send in the order for the three carloads of Gold Mine flour until the defendant had made a test with the carload of said Gold Mine flour theretofore ordered, and not then, unless the said carload should prove satisfactory; that in point of fact the said first carload was inferior; was not first-class flour; did not make first-class bread; was not satisfactory to defendant, and that the defendant's trade was greatly damaged by reason of the character of said flour; and that when defendant learned of the inferior quality of the flour, he at once notified the plaintiff not to ship under the written contract sued on; and the plaintiff, notwithstanding said fact, shipped the flour, and defendant refused to accept it.

he prepared the order of July 8, 1912, in duplicate, and sent the two copies to Sorg for his signature. A day or two later he received the two copies signed by Sorg. Plaintiff's proof further shows Sorg's refusal to accept the flour and the damages thereby incurred. When Sorg took the stand he stated that the contract was not signed by him or anybody for him by his authority. In detailing his conversation with plaintiff's agent, he said that he stated that, if the first car was satisthat they were talking about the flour, and factory and proved all right, he might take

Plaintiff's agent testified in substance that

some more flour from him. He also testified
that the first car of flour ordered in June did
not make salable bread, and because of its
bad quality he was compelled to take back
bread he had sold to grocers in Frankfort.
In the latter statement he was corroborated
by certain witnesses in Frankfort.
who had purchased flour from plaintiff about
the same time testified that the quality was
not good.

Others

At the conclusion of the evidence, plaintiff asked a peremptory instruction, which was refused. Thereupon the court on its own motion instructed the jury as follows:

"The first question for you to determine in this case is whether or not the contract in suit, alleged to have been signed by defendant, was in fact signed by him or by some one for him by his authority. If you find that the contract in suit, alleged to have been signed by defendant, was not in fact signed by him or any one for him by his authority, then your verdict must be for the defendant. If, on the other hand, you find that the contract in suit was in fact signed either by defendant or by some one for him by his authority, then, in that event, your verdict must be for the plaintiff, for the full amount claimed by it in this suit, with interest, unless you also find that the flour which plaintiff shipped to defendant under the said contract was worthless. In the event that you find that the said flour so shipped was worthless, then your verdict must be for the defendant. That is to say, your verdict must be in favor of the defendant if you find, either that the said contract was not signed by him, or by any one for him by his authority, or that the flour shipped to defendant by plaintiff under the said contract was worthless."

"For further answer and counterclaim herein the defendant, F. J. Sorg, reiterates the statements made in paragraphs No. 1 and No. 2, and says, further, that the contract sued on was proOn the return of the verdict in favor of cured by fraud, covin, and misrepresentation as the defendant, plaintiff moved for a judg

ment notwithstanding the verdict, and also paragraph was to interpose a counterclaim for a new trial. Both motions were over- or set-off, based on the loss of trade resultruled.

[1] Plaintiff first insists that the court erred in refusing to sustain its motion for a judgment notwithstanding the verdict. In reply to this contention it is sufficient to say that plaintiff, at the conclusion of the evidence, asked for a peremptory instruction, which should have been given for the reasons hereinafter pointed out, and it is the rule that where a party asks for a peremptory instruction which should have been given, he is not thereafter entitled to a judgment notwithstanding the verdict, but only to a

new trial for the error of the court in refusing the peremptory. Conn. Fire Insurance Co. v. Moore, 154 Ky. 20, 156 S. W. 867, Ann. Cas. 1914B, 1106; Louisville Ry. Company v. Hibbitt, 139 Ky. 44, 129 S. W. 319, 139 Am. St. Rep. 464; Louisville & N. R. Co. v. Johnson, 168 Ky. 351, 182 S. W. 214, L. R. A. 1916D, 514.

ing from the inferior quality of that partic-
ular flour. It therefore follows that there
was no plea that the flour covered by the
contract sued on was worthless. Further-
more, there was no competent testimony that
the flour last mentioned was worthless. The
only testimony bearing on the question was
that the flour ordered by defendant in June
and delivered in July, as well as other flour
ordered by other persons, was of inferior
quality and of the same brand as the flour
in controversy. There is no such persist-
ency in the character of flour that the
worthlessness of one carload may be re-
garded as evidence
evidence of the worthlessness.
of another carload, regardless of the time
of its manufacture or of the quality of
the wheat from which it was made. One
carload of flour may be bad, while another
carload, made from different wheat, may be
good. Hence, evidence of the inferior qual-

for the purpose of showing the inferior quality of another shipment, unless it is made to appear that the two shipments were manufactured under the same circumstances and conditions and out of the same quality of wheat. Newton v. Bayless Fruit Company, 155 Ky. 440, 159 S. W. 968. There being neither pleading nor proof that the flour covered by the contract of July 8th was worthless, it was error to submit this issue to the jury.

Without passing on the sufficiency of the plea of fraud, it sufficeth to say that there was no evidence tending to show fraud. Defendant did not testify to facts showing that he signed the contract, and that the contract was obtained from him by fraud. only denied the execution of the contract, but stated that the only conversation that he had with plaintiff's agent was that he might order additional flour if the flour theretofore ordered proved satisfactory.

[2] It will be observed that the defendant in his original answer did not make an un-ity of one shipment of flour is not admissible qualified denial of the execution of the contract He merely denied that he executed the contract, "other than hereinafter set out," and "except as hereinafter set out." He then alleges that the contract sued on was procured by fraud, covin, and misrepresentation, which consisted in an agreement on the part of the agent of the plaintiff not to send in the order for the three carloads of Gold Mine flour until the defendant had made a test of the carload of flour previously ordered and found it satisfactory. Not only so, but the defendant averred in his amended answer that the contract between plaintiff and defendant was executed between them in Frankfort on the 8th day of July, 1912, and that at the time he signed the contract sued on in plaintiff's petition he did not know that plaintiff had not complied with the law of Kentucky, etc. It is clear, therefore, that defendant never pleaded non est factum, but admitted the execution of the contract, and pleaded in substance that the contract was not to become effective unless the flour ordered in June proved to be satisfactory to defendant. Since defendant admitted the execution of the contract, it was error to submit this issue to the jury. [3, 4] The second paragraph of the original answer alleges that the first carload of flour was inferior. The third paragraph alleges "that, by reason of the inferior quality of said flour, the defendant's trade was damaged." As the defendant never accepted or used any of the flour embraced in the contract sued on, and as his trade could not have been damaged by its inferior quality, it is clear that the allegation in the third paragraph respecting the inferior quality of the flour applies only to the first carload ordered in June, and that the purpose of this

On

The only other issue presented by defendant's pleadings was his counterclaim for damages for loss of trade growing out of the inferior quality of the flour ordered. this issue there was no competent proof that defendant suffered any damage, and hence no question for the jury.

[5] Here then we have a case where the execution of the contract sued on was admitted, and there was neither pleading nor proof that the flour contracted for was worthless. The only defenses interposed were a plea of fraud and a counterclaim for damages growing out of the prior transaction, and there was no evidence to support either defense. Under these circumstances, the plaintiff was entitled to a peremptory instruction.

Judgment reversed, and cause remanded for a new trial consistent with this opinion.

(Court of Appeals of Kentucky. May 14, 1918.) Barker. From judgment for defendant, plaintiff appeals. Reversed, with directions.

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