Imagini ale paginilor
PDF
ePub

for cash. Require the father, guardian or a friend to be the purchaser.)

(b) Ratification of Minor's Voidable Contracts.

Case 32. Sanger v. Hibbard et al., 104 Fed. 455.

Facts: Sanger, while a minor, purchased goods from Hibbard Brothers and others, for use by him as a retail dealer. Later, Hibbard Brothers and others sued out attachment proceedings against the goods. Sanger, under statutory authority, gave a bond to dissolve the attachment, one of his creditors becoming surety thereon, and such creditor afterwards receiving the proceeds from the sale of the goods in satisfaction of his claim. It is asserted that by giving the bond the minor (who is still under age) ratified his contract or estopped himself from setting up his minority.

Point Involved: Whether a minor, while still a minor, can ratify his voidable contracts or estop himself to set up his minority.

CALDWELL, CIRCUIT JUDGE:

66#

The rule is well settled that an infant has an absolute right to disaffirm and avoid his contract for the purchase of property with which to enter into trade. He can repudiate his contract to pay for property purchased for such a purpose, and the seller has no redress unless the property purchased remains in the possession and control of the infant. In such case the infant's repudiation of his contract revests the title to the property sold in the vendor, who may recover it in a proper action for that purpose.

It is not claimed that he (the minor) ratified the contract or did any act to estop him setting up his defense after he had attained his majority, and the claim that the execution of the bond to dissolve the attachment during his infancy operated as an affirmance of the contract or as an estoppel is untenable. A minor can

neither make nor affirm a contract of this character during his infancy. The rule which precludes him from

making a [binding] contract precludes him from ratifying it.

*

[ocr errors]

Question 32: Can a party who has contracted with a minor set up that the minor has lost his right to avoid his contract because while still a minor he ratified it? Why?

Case 33. Rubin v. Strandberg, 288 Illinois Reports, 64.

Facts: Erik P. Strandberg, Jr., while a minor, entered into a contract with David, Ike, and Jacob Rubin, partners, by which Strandberg agreed to buy and the Rubins, to sell, certain real estate. This contract was made March 4, 1915. On October 7, 1915, defendant became of age. Strandberg made payments on the contract up to December 4, 1915, paying on the aggregate including interest, before and after age, the sum of $2,575. He made a payment in November and another in December (after he was of age). He also recorded the contract after he was of age. On February 4, 1916, he employed a lawyer and tendered back the contract, together with a quitclaim deed of all his interest in the property, and demanded back his money on the ground that he was a minor when he made the contract. The Rubins refused to accept the tender or accede to his request, and afterwards started the present suit asking that Strandberg be compelled to pay the balance due on the contract. Strandberg contends he did not know his legal right to disaffirm when he made the payments and recorded the contract after becoming of age.

Point Involved: What acts after majority constitute ratification of contracts entered into during minority? Is the party's ignorance of his legal rights after becoming of age material?

MR. JUSTICE FARMER:

It is not disputed

that defendant was a minor when the contract was entered into and that he attained his majority October 7, 1915, but complainants contend that the payments made by defendant after he became of age, and his act in caus

ing the contract to be recorded in January, 1916, constituted a ratification of the contract after he attained his majority. The defendant's answer to this contention is that at the time these acts were performed he did not know he had the legal right to disaffirm the contract upon attaining his majority, and that before said acts can be held to be a ratification of the contract it is necessary that the defendant should have known, at the time of their performance, that he had a right to disaffirm the contract on the ground that it was entered into during his minority.

“A minor may disaffirm a contract made by him during minority within a reasonable time after attaining his majority, and he may by acts recognizing the contract after becoming of age ratify it. There can be no doubt that the acts of the defendant after attaining his majority, in making the monthly payments and causing the contract to be recorded, were a ratification of the contract, unless the law is, as contended by defendant, that it was essential, in order to constitute said acts a ratification, that he knew at the time he performed the acts that the law authorized him to disaffirm the contract. Cases decided by this court relied on by defendant are Davidson v. Young, 38 Ill. 145, Sayles v. Christie, 187 Id. 420, and Coe v. Moon, 260 id. 76. In none of those cases was the question of the knowledge of the party, at the time of the alleged ratification, that he had a right, under the law, to disaffirm, involved. In the Davidson case the court held the act or circumstance relied on as a ratification of a deed made while the grantor was a minor was not of a character to constitute a ratification. The court said: 'In order to constitute a ratification of acts done in infancy, the act relied upon as a ratification must be performed with a full knowledge of its consequences and with an express intent to ratify what is known to be voidable.' Whether the grantor knew at the time of the alleged ratification that she had the legal right to disaffirm the deed is not mentioned or referred to. The case of Sayles v. Christie, supra, is the same in substance.

"In none of the above cases was the question here under consideration involved. In this case the proof failed to show that defendant had been induced by fraud and misrepresentation to enter into the contract. He had no reason for disaffirming it except that he had changed his mind. His change of mind was not the result of any discovery of the truth of facts which had been fraudulently misrepresented to him by complainants and upon which he relied in making the contract. He simply concluded that he had made an unprofitable contract and sought to disaffirm solely because he was a minor when it was made. Just when he reached that conclusion does not definitely appear. He defaulted in the January, 1916, payment, and on the day the February payment was due notified complainants of his election to disaffirm. He then would have had the legal right to disaffirm the contract if he had not previously and since attaining his majority ratified it. The payments in November and December, 1915, evidenced his intention to comply with his contract and were a ratification of it, unless, as contended, he did not then know the law authorized him to disaffirm it. In our opinion defendant's acts after becoming of age must be regarded as done in the light of knowledge of his legal right to disaffirm; that he was presumed to know the law, and cannot be heard to say that he was ignorant of his legal right in that respect and performed the alleged acts of ratification in ignorance of that right. Upon this particular question the authorities are not altogether in accord, but in our opinion the more logical reasoning sustains that proposition. Wharton on Contracts (vol. 1, sec. 57), in discussing the question says: 'Hence the better opinion is that a ratification made by a person of sound mind on arriving at his majority will be held valid, if untainted with fraud or undue influence, though the party making it was not at the time aware that it bound him in law.' The proposition that it is not necessary to a binding ratification that the party sought to be charged knew at the time of the act that he had the legal right to avoid the contract

is sustained in American Mortgage Co. v. Wright, 101 Ala. 658; Bestor v. Hickey, 71 Conn. 181; Morse v. Wheeler, 86 Mass. 570; Anderson v. Soward, 40 Ohio St. 325; Clark v. VanCourt, 100 Ind. 113; 14 R. C. L. 249.

"In our opinion the Appellate Court did not err in holding defendant's acts after attaining his majority were a ratification of the contract, and its judgment is affirmed.

"Judgment affirmed."

Question 33: What was the contract in this case? By whom is the suit brought and for what purpose? What is the defense? The answer to that defense? What acts were done by the minor after he became of age?

Was he ignorant of his right

at that time? Did this make any difference?

§ 43. (Contracts, Sec. 11.) Tortious liability of minors in cases involving contracts.

Case 34. Fitts v. Hall, 9 N. H., 441.

Facts: Plaintiff, having a large quantity of hats for sale, sold them to defendant, first inquiring of defendant if he were of age and being informed that he was. Plaintiff sued defendant for the price and defendant set up and proved he was a minor. Plaintiff now brings suit for damages sustained by reason of the deceit and fraud practiced upon him by defendant.

Point Involved: Is a minor who procures benefits through false misrepresentation as to his age, under a contract voidable by him, answerable in damages for the deceit?

*

PARKER, C. J.: "The general principle

is

that an infant is liable in actions ex delicto [in tort] * * *. But a matter of contract is not to be turned into a tort in order to charge the infant by change of the form of action.

"But if the tort is subsequent to the contract and not a mere breach of it, but a distinct, wilful and positive wrong of itself, then, although it may be connected with a contract, the infant is liable.

« ÎnapoiContinuă »