recording a transfer of stock amount to a conversion of the stock. The transfer being voidable only, and legal and valid when made, the corporation had no right to refuse a transfer. Smith v. Nashville & D. R. Co. 91 Tenn. 221, 239, 18 S. W. 546. It could have been compelled by the purchaser by recourse to the proper remedy to duty to transfer make it. Travis v. Knox Terpezone Co. 215 N. Y. 259, 264, L.R.A.1916A, 542, 109 N. E. 250, Ann. Cas. 1917A, 387.

Corporation

stock.

It follows that the judgment should be reversed as to the United States Steel Corporation and affirmed as to the individual defendants, unless as to them plaintiff proceeded erroneously in suing for a conversion based on a rescission without previously giving notice of disaffirmance. It is urged on their behalf that, as no tort was committed until disaffirmance, no action should lie without a prior disaffirmance (Gould v. Cayuga County Nat. Bank, 86 N. Y. 75, 82; Smith v. Ryan, 191 N. Y. 452, 456, 19 L.R.A. (N.S.) 461, 123 Am. St. Rep. 609, 84 N. E. 402, 14 Ann. Cas. 505), and that the action itself cannot be made an essential element of the cause of action without introducing an anomaly which is fundamental and more procedural in its character.

Infant-duty to restore consideration.

or

The right of an infant to avoid or rescind contracts made during his minority does not depend on his ability to restore the consideration otherwise make restitution to the other party (Green v. Green, 69 N. Y. 553, 25 Am. Rep. 233), but, to the extent that he still has the consideration, the other party becomes entitled thereto. The plaintiff had received from Kastel $4,500 in cash, which she has spent, and she holds his worthless note for $12,500, on which he is credited with $2,000. She demanded judgment in her complaint for the market value

of the stock at the time of conversion, but on the trial, the parties having waived the right to a trial by jury, she tendered back the note, established her inability to return the cash received, and asked and obtained judgment for the difference between the net amount realized on the sale of the stock and the amount paid to her by Kastel.

The form of the complaint is proper. It was not necessary to plead the evidence of a conversion. The voidable deed of an incompetent person may be avoided in an action of ejectment without resorting to equity, the complaint simply stating that the plaintiff was the owner in fee and entitled to the possession of the real estate therein described, and that the defendant unlawfully withheld possession thereof. Smith v. Ryan, supra, 459 (84 N. E. 402). The beginning of replevin has also been held to be a sufficient act of rescission scission (Wise v. Grant, 140 N. Y. 593, 596, 35 N. E. 1078), but the general rule is that in law, in an action based on the prior rescission of a voidable contract, Trover-necesa tender before suit sity to tender is necessary, although in equity, where the relief sought is rescission, it is sufficient to offer restoration in the complaint (Smith v. Ryan, supra, 456). The cause of action here is at law, the legal remedy is adequate, and an action to declare a rescission would not lie.

before suit.

Schank v. Schuchman, 212 N. Y. 352, 357, 106 N. E. 127.

But the plaintiff should not be dismissed. "The law does not require an idle ceremony." Gould v. Cayuga County Nat. Bank, supra, p. 81. Tender of benefits was excused. The money she had spent. Kastel's note was worthless. In any event he alone could insist on its return as a condition of disaffirmance (Stevens v. Austin, 1 Met. 557, cited with approval in Gould v. Cayuga County Nat. Bank, supra), and he does not complain. Notice of rescission where there is nothing to tender

I. Introduction, 1001.

II. In general:

a. Doctrine that appointment is merely voidable, 1002.

b. Doctrine that appointment is void, 1005.

III. Illustrations and applications: a. In general:

1. Appointment voidable only, 1007.

2. Appointment void, 1009. b. Ratification by infant:

I. Introduction.

The authorities are in conflict on the present question. Many of the cases, however, which have been cited in support of the doctrine that an infant's appointment of an agent, and acts of the agent thereunder, are absolutely void and are not merely voidable, cannot be considered direct authorities on the proposition, but support it only by dictum. An attempt has been made in the annotation to indicate these obiter statements, in order to discover the true rule as disclosed by the authorities. Taking the actual conclusions reached, there remains a conflict of opinion, but the weight of authority--at least, the more recent and apparently betterconsidered cases-places an infant's appointment of an agent, and acts of the agent thereunder, in the same class as the other acts of an infant, and considers them merely voidable, and not absolutely void. It is said in 14 R.C.L. § 10, that "the modern doctrine is to the effect that, except as to a narrowly limited class of contracts

III. b-continued.

1. Doctrine that infant may ratify, 1011.

2. Doctrine that infant cannot ratify, 1014.

c. Beneficial or harmful nature of appointment and acts of agent; necessaries, 1015.

d. Warrant of attorney to confess or acknowledge satisfaction of judgment, 1017.

IV. Statutes, 1019.

V. Miscellaneous, 1019.

which are valid and binding upon him, an infant's contracts are voidable, but not void."

In some cases, as will be observed, even though the courts have held the appointment void, they have done so merely because they considered. themselves bound by the decisions to this effect, and regarded the contrary as a more reasonable rule. It should be observed that those cases which hold that an infant's appointment of an agent and the acts of the latter thereunder are void do not give any satisfactory reason for this rule. The doctrine seems to have originated in several of the early English cases, which have been followed without apparently due consideration of the grounds for the decision. In fact, no really substantial ground appears to be advanced in any of the cases for making a distinction in this respect between an infant's appointment of an agent and other contracts and acts of an infant which are

merely voidable. It is suggested in

merely voidable.

some of the cases that an infant's ap

pointment of an agent comes within those acts which are necessarily prejudicial to an infant. But why this is so is not obvious. It seems clear that the infant is better protected, and his rights more fully safeguarded, if the appointment and acts of the agent are held merely voidable by him, than if they are regarded as absolutely void, so that the other party to the contract is not bound thereby and it is of no effect as regards strangers.

As regards differences in the final result between the holding that the appointment is absolutely void and the holding that it is merely voidable, it should be noted that, if the appointment of an agent by an infant is void and not merely voidable, it is an absolute nullity, and may be attacked by strangers, and that, no matter how beneficial it may prove to be to the infant, he cannot ratify it after he becomes of age; also that if the appointment of the agent and acts of the latter are absolutely void, no disaffirmance on the part of the infant is required after he becomes of age. In Cummings v. Powell (1852) 8 Tex. 80, the court, in considering whether a deed executed by an infant was void or voidable, said: "A void act, as defined in the latter cases and by approved authorities, is one which is entirely null, not binding on either party, and not susceptible of ratification; and a voidable act is one which is obligatory upon others until disaffirmed by the party with whom it originated, and which may be subsequently ratified or confirmed."

And it was said in Cummings v. Powell (Tex.) supra, that the tendency of the decisions, for a century at least, has been for the extension of the rule that the acts of infants shall be deemed voidable only, and subject to their election either to affirm or disallow them.

Cases on the question of the necessity of an appearance in court of an infant by a guardian or next friend, rather than by an attorney merely, are not included in the annotation. And the question also is excluded as

to whether a judgment rendered on appearance of an infant by attorney only is void or voidable. In general, it may be said that the annotation does not include cases on the right of an infant to employ an attorney to prosecute or defend an action, although it does include cases of an appointment of an attorney to confess judgment, since these appear to stand more on the footing of an ordinary appointment of an agent.

Although some of the decisions involving the question whether an infant may appoint an agent, so as to render himself liable for the latter's torts, discuss the general question of the authority of an infant to create an agency or delegate power to another, these cases belong to a somewhat distinct class, and as such are not covered in the annotation. Among possibly other cases involving the question of the responsibility of an infant for the torts of his servant or agent, are Burns v. Smith (1902) 29 Ind. App. 181, 94 Am. St. Rep. 268, 64 N. E. 94; Cunningham v. Illinois C. R. Co. (1875) 77 Ill. 178; Sikes v. Johnson (1820) 16 Mass. 389; Burnham v. Seaverns (1869) 101 Mass. 360, 100 Am. Dec. 123; Robbins v. Mount (1867) 4 Robt. (N. Y.) 553, 33 How. Pr. 24; Smith v. Kron (1887) 96 N. C. 392, 2 S. E. 533; Covault v. Nevitt (1914) 157 Wis. 113, 51 L.R.A. (N.S.) 1092, 146 N. W. 1115, Ann. Cas. 1916A, 959.

II. In general.

a. Doctrine that appointment is merely voidable.

As already indicated, the better view appears to be that an infant's appointment of an agent or attorney, and acts of the latter, are not absolutely void, but are merely voidable, there being no distinction in this regard between such an appointment and other acts or contracts of an infant. The following cases support the doctrine that an infant's appointment of an agent or attorney and the acts of the latter are voidable only: California. Hastings v. Dollarhide (1864) 24 Cal. 195.

Maine. Hardy v. Waters (1853)

38 Me. 450; Towle v. Dresser (1882) 73 Me. 252 (where not prejudicial).

Maryland.— Hall v. Jones (1864) 21 Md. 439. But see Wainwright v. Wilkinson (1884) 62 Md. 146 (holding appointment of attorney void).

Massachusetts.-Whitney v. Dutch (1817) 14 Mass. 457, 7 Am. Dec. 229; Simpson v. Prudential Ins. Co. (1903) 184 Mass. 348, 63 L.R.A. 741, 100 Am. St. Rep. 560, 68 N. E. 673; Benson v. Tucker (1912) 212 Mass. 60, 41 L.R.A. (N.S.) 1219, 98 N. E. 589. See also Stiff v. Keith (1887) 143 Mass. 224, 9 N. E. 577.

Minnesota.-Coursolle v. Weyerhauser (1897) 69 Minn. 328, 72 N. W. 697.

Mississippi.

See Alsworth v. Cordtz (1856) 31 Miss. 32 (rule not discussed, but is apparently supported by holding).

Missouri. See Ward v. The Little Red (1844) 8 Mo. 358 (rule not discussed, but apparently supported by holding).

New Jersey.-Patterson v. Lippincott (1885) 47 N. J. L. 457, 54 Am. Rep. 178, 1 Atl. 506.

New York.-CASEY V. KASTEL (reported herewith) ante, 995.

South Carolina.-Belton v. Briggs (1814) 4 S. C. Eq. (4 Desauss.) 465; Alexander v. Heriot (1831) 8 S. C. Eq. (Bail.) 223; Miller v. Sims (1834) 20 S. C. L. (2 Hill) 479 (partnership); Scott v. Scott (1888) 29 S. C. 414, 7 S. E. 811. See also Cheshire v. Barrett (1827) 15 S. C. L. (4 M'Cord) 244, 17 Am. Dec. 735 (obiter).

Texas. - Cummings v. Powell (1852) 8 Tex. 80 (obiter); Vogelsang v. Null (1887) 67 Tex. 465, 3 S. W. 451 (obiter; holding that agent's authority may be disaffirmed). See also Ferguson v. Houston E. & W. T. R. Co. (1889) 73 Tex. 344, 11 S. W. 347.

Canada.-Hubley v. Morash (1894) 27 N. S. 281; Johannson v. Gudmundson (1909) 19 Manitoba L. R. 83 (voidable where beneficial to infant).

The reported case (CASEY V. KASTEL, ante, 995) is an important one, bringing New York into line with those states which have adopted what appears to be the sounder doctrine, that an appointment of an

agent by an infant, and acts of the latter under such appointment, are merely voidable. The decision in effect overrules several earlier cases in that state, cited under II. b, infra, which support a contrary view.

Dicta or decisions to the effect that all acts done and contracts executed by an infant through the intervention of its agent are void have been regarded in Maine as inaccurate and unsound, the appointment by an infant of an agent, for certain purposes at least, belonging to that class of voidable contracts only, in relation to which infancy is a personal privilege which no one except the infant or his legal representative is entitled to assert. Towle v. Dresser (Me.) supra. See also Hardy v. Waters (Me.) supra.

A direct authority on the question, holding an infant's power of attorney only voidable, is Coursolle v. Weyerhauser (Minn.) supra, in which, in holding that an appointment by a minor of an attorney to sell and convey real estate, and a conveyance by the attorney under such an appointment, were not void, but voidable merely, and capable of ratification by the infant after he attained his majority, the court said: "The question remains-which to our minds is the most important one in the casewhether the act of a minor in appointing an agent or attorney is wholly void, or merely voidable. Formerly the acts and contracts of infants were held either void, or merely voidable, depending on whether they were necessarily prejudicial to their interests, or were or might be beneficial to them. This threw upon the courts the burden of deciding in each particular case whether the act in question was necessarily prejudicial to the infant. Latterly the courts have refused to take this responsibility, on the ground that, if the infant wishes to determine the question for himself on arriving at his majority, he should be allowed to do so, and that he is sufficiently protected by his right of avoidance. Hence the almost universal modern doctrine is that all the acts and contracts

of an infant are merely voidable. Upon this rule there seems to have been ingrafted the exception that the act of an infant in appointing an agent or attorney, and consequently all acts and contracts of the agent or attorney, under such appointment, are absolutely void. This exception does not seem to be founded on any sound principle, and all the text-writers and courts who have discussed the subject have, so far as we can discover, conceded such to be the fact. On principle, we think the power of attorney of an infant, and the acts and contracts made under it, should stand on the same footing as any other act or contract, and should be considered voidable in the same manner as his personal acts and contracts are considered voidable. If the conveyance of land by an infant personally, who is of imperfect capacity, is only voidable, as is the law, it is difficult to see why his conveyance made through an attorney of perfect capacity should be held absolutely void. It is a noticeable fact that nearly all the old cases cited in support of this exception to the general rule are cases of technical warrants of attorney to appear in court and confess judgment. In these cases the courts hold that they would always set aside the judgment at the instance of the infant, but we do not find that any of them go as far as to hold that the judgment is good for no purpose and at no time. The courts have, from time to time, made so many exceptions to the exception itself that there seems to be very little left of it, unless it be in cases of powers of attorney required to be under seal, and warrants of attorney to appear and confess judgment in court.

Hence, notwithstanding numerous general statements in the books to the contrary, we feel at liberty to hold, in accordance with what we deem sound principle, that the power of attorney from plaintiff to Dorr, and the deed to Brown under that power, were not absolutely void because of plaintiff's infancy, but merely voidable, and that they were ratified by him after attaining his majority."

And it was said (obiter) in Cum

mings v. Powell (1852) 8 Tex. 80 (a case where infants before attaining majority attempted, through their guardian, to disaffirm a sale of land by them), that "it is a matter of great convenience, if not of absolute necessity, that sales should be effected by agents, and it seems quite preposterous that a sale by a minor, which must necessarily, or may most conveniently, be made through the intervention of an attorney in fact, should be void, but if made by himself would only be voidable. His infan

cy, instead of operating benefically, would, under such circumstances, be perverted to his injury. If the act be void, it is not binding on others; and if the property depreciate after the sale, it might be thrown back upon his hands, and his infancy would then be turned against him, and, instead of shielding himself, would protect others."

So in Ferguson v. Houston E. & W T. R. Co. (1889) 73 Tex. 344, 11 S. W. 347, the court indicates that the proper rule in case of a power of attorney given by an infant to sell land is that the power is merely voidable, and not absolutely void, although a decision on the question was unnecessary in this case. The court said that whether such a power of attorney was void or merely voidable had not been decided in that state; that many authorities held that such a power was void, while it was well settled that a deed executed by an infant was merely voidable; that it was unable to appreciate the reason given for this distinction that the reason for the rule that the deed of an infant is voidable is to protect him against his own lack of discretion and the craft of others, and that it was unable to discover any substantial reason why the same rule should not apply to a power of attorney, as the infant would thereby be afforded ample protection against the injurious consequences of indiscreet and improvident contracts and acts done during his minority.

See also Hyer v. Hyatt (1827) 3 Cranch, C. C. 276, Fed. Cas. No. 6,977, in which the court expressed the opinion that no contract entered into