The only exception to the rule that an infant's contracts are not void, but voidable, is that an infant cannot appoint an agent or attorney, and that such appointment and all acts and contracts of the agent for the infant are void.10 The cases establishing this rule are nearly all concerned with warrants of attorney to confess judgment and powers of attorney to execute deeds, and it is possible that the rule is limited to such cases. § 40. Contracts Generally Only Voidable. According to the general rule the contracts of an infant are merely voidable and subject to ratification or repudiation by him on his coming of age. Of course, the other party may not repudiate the contract and is bound if the infant desires to hold him to performance. The general rule that an infant's contracts are voidable by the infant, is not universal, however, for there are contracts which an infant cannot avoid. § 41. Contracts Which Infant Cannot Avoid. The contracts of an infant which are binding upon him and cannot be avoided by him, may be classified as follows: (1) Contracts authorized by law. (2) Contracts in performance of what the law would require. (3) Express and implied contracts for necessaries. Contracts Authorized by Law. An infant's contracts entered into under the authority of or by direction of a statute or the common law, are binding upon him. Thus, a bond executed by an infant to secure his appearance in court in answer to a criminal charge, is binding and cannot be avoided by him because of infancy. Statutes requiring the giving of bonds in certain instances make a bond given by an infant thereon equally binding with the contract of an adult where the statutes are general in their terms. Because of the sovereign right and power of the State to enlist soldiers and sailors in its service, the enlistment contracts of minors are binding.11 10 Armitage v. Widoe, 36 Mich. 124. 11 In re Morrissey, 137 U. S. 157, 34 L. ed. 644. Contracts in Performance of What the Law Would Require. In a New York case,12 it is said: "When an infant is under legal obligation to do an act, he may bind himself by a fair and reasonable contract for the purpose of discharging the obligation. If this be nof a general rule, it is at least one of pretty wide application." Thus, where a father took the title to real estate in the name of his infant son, for the purpose of defrauding his creditors, it was held that a subsequent conveyance of the land by the infant at the direction of his father, could not be later avoided by him because of his infancy.13 He merely parted with the naked legal title, and did only what a court of equity would have compelled him to do. Express and Implied Contracts for Necessaries. The obligation of an infant to pay for necessaries furnished to him is more truly an implied obligation than an express obligation.14 This is shown from the fact that the infant is only bound to pay the reasonable value of the necessaries and cannot be held on an express contract to pay more for them. Furthermore, he is liable only when the necessaries have been actually furnished him and is not liable for breach of a contract to take and pay for them.15 The obligation of an infant to pay for necessaries furnished him, is based on the reason that otherwise he might be unable to procure suitable food, clothing, shelter, and education. It is sufficient that he received them under circumstances from which a promise to pay for them might be implied. Lord Coke's definition of an infant's necessaries as "his necessary meat, drinke, apparel, necessary physicke, and such other necessaries, and likewise for his good teaching or instruction, whereby he may profit himself afterwards", fairly states the modern law. What are necessaries varies in different cases, as depending upon the infant's station 12 People v. Moores, 4 Denio 518, 47 Am. Dec. 272. in life, although it is clear that some things could never be necessaries. Thus, today an airship could never be deemed a necessary, while the decision as to whether a watch was a necessary would depend upon the circumstances of the particular case. The article must be for use and not merely for ornament, and be for the substantial good of the infant and not merely for his pleasure, in order to be a necessary. Thus, liquors, tobacco, pistols, powder, and fiddles, are not necessaries. And if the articles are necessaries, they must not be extravagant in quantity or quality. Thus, ordinary school books are necessaries, but a rare edition of Shakespeare is not. Things with which an infant is already sufficiently supplied are not necessaries.16 Thus, an infant who has sufficient clothes already, whether supplied by his father or guardian, or by himself, is not liable for additional clothing purchased, since it does not supply a want. It is also essential that the articles furnished concern the person of the infant, rather than his estate, in order to be necessaries. Under this rule it is held that an infant is not · liable for labor or materials supplied in erection of buildings on his land or in replacing them.17 Nor is his property. subject to a mechanic's lien therefor.18 The person who supplies an infant with articles, acts at his peril in determining whether they are necessaries. An infant who has a father or guardian with whom he lives, is presumed to be adequately supplied, and the burden is on one who sells articles to such an infant to prove that he was not adequately supplied. The law as to whether borrowed money expended for necessaries is itself a necessary is well stated in a New York decision to be that "An infant is not answerable for money borrowed, though expended by him for necessaries; nor for money borrowed to buy necessaries, unless it was actually so applied. And perhaps the infant is not answerable in that case, unless 16 Trainer v. Trumbull, 141 Mass. 527, 6 N. E. 761. 17 Price v. Jennings, 62 Ind. 111. 18 Bloomer v. Nolan, 36 Neb. 51, 53 N. W. 1039, 38 Am. St. Rep. 690. the lender either lays out the money himself, or sees it laid out for necessaries. But where that is done, the infant is answerable for the money, the same as he would have been for the necessaries had they been directly furnished by the lender."'19 Since the obligation of an infant is only to pay the value of the necessaries and not what he promised to pay for them, it follows that a promissory note or other security given by the infant should on principle be enforcible only to the extent of the value of the necessaries furnished therefor. The court first considers whether the articles furnished to the infant can reasonably be considered necessaries at all. If the court decides that they come within the class of necessaries, then it is for the jury to decide whether, under the circumstances of the particular case, the articles were in fact necessaries. § 42. Ratification. Where the contract of the infant is voidable, he may make it binding and enforcible against him by ratification upon or after reaching his majority; or he may, before ratification, but not afterwards, disaffirm or repudiate it and thereby escape any liability on it. The creation of liability by ratification is an illustration of what has already been discussed as past consideration. The ratification relates back to the time the contract was made and makes it binding from the beginning. What Constitutes Express Ratification. When the infant's contract is wholly executory upon his part, it will only become binding upon him through express ratification by a new promise. It must be a distinct promise made to the other party or his agent showing a willingness and intention to perform the contract. If the promise was merely that he would pay "as soon as he is able," or "as soon as he can," proof of the infant's ability to pay must be made before the plaintiff can recover.20 It is also held that 19 Randall v. Sweet, 1 Denio (N. Y.) 460. 20 Everson v. Carpenter, 17 Wend. (N. Y.) 419; Thompson v. Lay, 4 Pick. (Mass.) 48. the new promise, to constitute a ratification, must be made with knowledge that there was in law no liability on the original contract, but some courts will presume that the new promise was made with knowledge of the law. Implied Ratification. In many cases ratification will be implied from the acts and conduct of the infant after he has reached his majority. Thus, if an infant accepts, after coming of age, the consideration of a contract made during infancy, his conduct will amount to a ratification. The same is true where an infant, after coming of age, retains and uses real estate or chattels purchased during infancy or disposes of the same to third persons.21 Bringing suit on the contract after coming of age, is held to be an implied ratification. § 43. Disaffirmance. Disaffirmance is as necessary in some cases to prevent an implied ratification, as express ratification is necessary in other cases to make the contract binding. Thus, where an infant acquires an interest in permanent property, or enters into a contract which creates continuous rights, liabilities, and benefits, he may become bound unless he expressly disaffirms. An infant who has purchased land and gone into possession will be held to have ratified the transaction if he does not disaffirm it, within a reasonable time after coming of age. An infant lessee who continues to occupy the premises after reaching full age, is liable for arrears of rent which accrued during his minority. On the same principle, an infant partner will become liable for debts of the partnership contracted during his minority unless he expressly disaffirms the partnership when he comes of age. In a leading English decision it is said that "the infant, by holding himself out as a partner, contracted a continual obligation; and that obligation remains till he thinks proper to put an end to it. If he wished to be understood as no longer continuing a partner, he ought to have notified it to the world."22 Where an infant has conveyed land, it is held 21 Boyden v. Boyden, 9 Met. (Mass.) 519. 22 Goode v. Harrison, 5 Barn. & Ald. 147, 159, 106 Eng. Rep. Re. 1147, 1151. |