93 Mass. 365 | Mass. | 1865
The ruling of the court was in accordance with well established principles. The defendant’s promise, although it may have been made on a good consideration as to the plaintiff, was nevertheless a promise to pay the debt of another, and no action can be maintained upon it. Gen. Sts. c. 105, § 1. The fallacy of the argument urged in behalf of the plaintiff lies in the assumption that there was in fact no debt due from the son of the defendant, because he was a minor at ihe time h'e undertook to enter into a contract with the plaintiff. A debt due from a minor is not void; it is voidable, only; that is, it cannot be enforced by a suit at law against the contracting party, on plea and proof by him of infancy. But it is voidable only at the election of the infant, and until so avoided it is a valid debt. Nor can a third person avail himself of the minority of a debtor to obtain any right or security or title. Infancy is a personal privilege, of which no one can take advantage but the infant. Kendall v. Lawrence, 22 Pick. 540. Nightingale v. Withington, 15 Mass. 274. McCarty v. Murray, 3 Gray, 578.
The effect of the doctrine contended for by the counsel for the plaintiff would be that a verbal agreement to answer for the debt oi another would be valid, if it could be shown that the original contracting party could have established a good defence to the debt in an action brought against him. We know of no principle or authority on which such a proposition can be maintained, It certainly would open a wide door for some of the mischiefs which the statute of frauds was designed to prevent.
The case for the plaintiff derives no support from the argument based on proof of an agreement by the plaintiff to forbear to sue the defendant’s son, in consideration of the promise of
Exceptions overruled.