Opinion of the Court, per DAVIES, J. age. an express confirmation or ratification, after he comes of This ratification must either be a direct promise or by saying, 'I ratify and confirm,' or, 'I agree to pay the debt,' or by positive acts of the infant, after he has been of age a reasonable time, in favor of his contract, which are of a character to constitute a perfect evidence of ratification as an express and unqualified promise." To the same effect is the case of Robbins v. Eaton (10 N. H., 561). We will now advert to the course of judicial decisions in this State. A reference has already been made to the remarks of Chief Justice SPENCER, in Sands v. Gelston, where he observed that he could never see the difference, as regards the revival of a debt, between one barred by the statute of limitations and one from which the debtor had been discharged under the bankrupt or insolvent laws. He says: "There is no substantial difference between a debt barred by the statute of limitations, and a debt from the payment of which the debtor is exonerated by a discharge under a bankrupt or insolvent act. A fortiori, a debt not discharged, as that of an infant, ought certainly not be placed on the same footing with one which is." I think we shall find, on examination of the cases in this State, that there has been a great change of views and modification of opinion on the subject of infant's contracts. All the cases hold that the contract of the minor is not void, but voidable only. (Goodsell v. Myers, 3 Wend., 479; Evertson v. Carpenter, 17 id., 417; Delano v. Parke, 11 id., 85; Bay v. Gunn, 1 Denio, 108; Taft v. Sargeant, 18 Barb., 320.) Having now, as I think, conclusively established that the promissory note or contract of an infant is voidable only, and not void, and that it is a subsisting liability, which cannot, however, be enforced without some further act on his part after he attains his majority, it will be necessary, in the next place, to inquire what is the rule of law in this State as to acts or declarations of his, which may have the effect of making it legally binding upon him, so that it may be enforced in the courts against him. It is well to bear in mind that principles of law Opinion of the Court, per DAVIES, J. which were recognized and enforced to protect infants against their acts of indiscretion and folly while of such years, as the law assumed they could not act with prudence and discretion, should not be invoked to aid them in the perpetration of gross fraud, and to wrong the innocent and confiding. Not a few have been of the opinion that a man, who, by representing himself as competent to contract, and on the faith of such representations does contract and obtain a benefit to himself, which he retains, should not be allowed afterwards, when that contract is sought to be enforced against him, to set up and allege that he had no legal power to make the contract, and therefore he was not liable on it. Common honesty and fair dealing among men would seem to require that he should be estopped from setting up such a defense. It is certainly the duty of courts not to aid such defenses, when their countenance can be withheld without doing violence to established principles of law. If we find that the rules of law, as expounded by the courts and learned authors, will sustain us in overruling such a defense, we should not be slow in following their leadings. We have seen by the earlier cases, that to bind a bankrupt or infant there must be proven a precise and positive promise to pay the particular debt, after the discharge, or after attaining full age, and the reason assigned was, that in such cases they were discharged from their liabilities, or were never subject to answer. was certainly so as to the bankrupts, and undoubtedly so as to the infant, if his contract was void. He had no capacity to make it, and his state of infancy discharged him therefrom, or made it no contract. In both cases the debts were in the eye of the law as though they had never been, and therefore the court in this respect required proof equivalent to a new contract to make them binding. This But it has been found, on a more careful examination of the cases, the later ones especially, that the contracts of an infant were not void, but only voidable, and therefore the ground was changed, and a different element was thrown in; and the courts have adopted the more sound and sensible rule, that ratification or confirmation of the contract made in Opinion of the Court, per DAVIES, J. infancy will bind the party if done after his coming of age. This new promise, positive and precise, equivalent to a new contract, is not now essential; but a ratification or confirmation of what was done during the minority, is sufficient to make the contract obligatory. These words, ratify or confirm, necessarily import that there was something in existence to which the ratification or confirmation could attach, entirely ignoring, therefore, the notion that an infant's obligations or contracts were discharged or extinguished by reason of the state of infancy. And it was said in the case of Whitney v. Dutch (supra), that the terms of the ratification need not be such as to import a direct promise to pay. All that is necessary is that the infant, after attaining his majority, should expressly agree to ratify his contract by words, oral or in writing, or by acts which import a recognition and a confirmation of his promise. In Goodsell v. Myers (supra), Savage, Ch. J., said: "A ratification of an infant's contract should be something more than a mere admission to a stranger that such a contract existed; there should be a promise to a party in interest or to his agent, or at least an explicit admission of an existing liability, from which a promise is implied." This rule is affirmed in Delano v. Blake (supra). In the case of The Merchants' Fire Ins. Co. v. Grant (2 Edw., 544), the vice-chancellor held, that a provision in a will, made after attaining full age, directing "all his just debts and personal expenses to be first paid and satisfied," was a confirmation of a mortgage given by the testator while an infant. In Bigelow v. Granniss (2 Hill, 120), the court says: "In the case of infancy, there must be a new promise, or a ratification of the contract, after the defendant has attained the age of twenty-one years, and so in the cases of contract. The minds of the parties must meet. A promise to a stranger will not answer." The same rule is recognized in Watkins v. Stevens (4 Barb., 168). I think that the course of decision in this State authorizes us to assume that the narrow and stringent rule, formerly enunciated, that to establish the contract, when made in TIFFANY.-VOL. VI. 69 Opinion of the Court, per DAVIES, J. infancy, there must be a precise and positive promise to pay the particular debt, after attaining majority, is not sustained by the more modern decisions. A brief reference to the course of legislation and decisions in England of a more modern date, will illustrate and confirm these views. In 1828 an act was passed, called Lord TENTERDEN's act, (9 Geo. IV., ch. 14), having reference to the acts necessary to be done to revive and give full force to the contracts barred by the statute of limitations and the contracts of infants. A statute had been passed in 6 Geo. IV (65 Stat. at Large, p. 46), in reference to bankrupts, the 131st section of which declares that no bankrupt, after his discharge, shall be liable to pay or satisfy any debt, claim or demand from which he shall have been discharged, upon any contract, promise or agreement made or to be made after the suing out of the commission, unless such promise, contract or agreement be made in writing, and signed by the bankrupt or some person authorized by him. The first section of the act of 9 Geo. IV declares that, to take a debt or simple contract out of the operation of the statute of limitations, no acknowledgment or promise by words orally shall be deemed sufficient evidence of a new or continuing contract, and to make it operative, such acknowledgment or promise shall be in writing, signed by the party to be charged thereby. And section 5th enacts, that no action shall be maintained whereby to charge any person upon any promise, made after full age, to pay any debt contracted during infancy, or upon any ratification, after full age, of any promise or simple contract, made during infancy, unless such promise or ratification shall be in writing, to be signed by the party to be charged thereby. The framers of this act make the same distinction as the courts in this State, viz: a promise to pay, and a ratification of a promise or of the contract; the only difference now being, that in England such promise or ratification must by this statute be in writing, while with us it may rest in parol or acts. The principle is the same in both countries, and the difference is only in matter of evidence. Opinion of the Court, per DAVIES, J. In Hartley v. Wharton (11 Adol. &. Ellis, 934), an infant was held to have ratified a contract for the purchase of goods sold and delivered to him during infancy, by a letter or paper, which was given to the agent of the plaintiff when he called and demanded payment of the debt. He made no other answer, and the paper had no address. It was in these words: "Sir, I am sorry to give you so much trouble in calling, but I am not prepared for you, but will without neglect remit you in a short time. Yours respectfully, Frederick Wharton." Lord DENMAN, Ch. J., says, the effective words in the act are, "promise" and "ratification." The mischief to be provided against was, not the want of particularity as to the sum, but looseness of proof as to the fact of acknowledgment, and the defendant was held to have ratified the contract. Harris v. Wall (1 Exch., 122), is an important case, and deserves careful consideration. It was an action of assumpsit by indorsce against the acceptor of a bill of exchange, dated 29th March, 1845, for the sum of £500. Defendant plead that, at the time of making the promise, &c., he was an infant, under the age of twenty-one years. Replication, that, before the commencement of the suit, and after he attained his full age of twenty-one years, he, the defendant, by a certain memorandum signed by him, ratified and confirmed the said contracts and promises, and then promised the plaintiff to pay him the moneys mentioned in the declaration. It appeared that there was another acceptance of the defendant for £1,500, but by whom held does not distinctly appear, though little doubt can exist it was by the plaintiff. It was proven that the defendant attained his full age on the 10th of December, 1845. The ratification and confirmation were sought to be made out by letters, addressed to the plaintiff, and written and signed by the defendant. The first, dated January 2, 1846, was in these words: "Mr. Harris: I should feel particularly obliged if you would arrange to keep the bills back for a little time, as my late brother's executors have lost their mother and only sister lately, and which prevents them from settling with you. The money will shortly be |