Flexner & Lichten v. Dickerson

72 Ala. 318 | Ala. | 1882

SOMERYILLE, -J.

The following propositions we consider to be settled by the modern decisions in this country, including our own adjudged cases : 1. Infants are not liable on any of their contracts, excepting only for necessaries, — the sum to be recovered iirsuch cases being the just value of the necessaries, and not what was agreed to be paid. 2. The only act which an infant is legally incapacitated to perform, is the appointment of pm attorney. 3. All other contracts of infants, whether executory or executed, may be avoided or ratified at the election of the infant, being considered voidable, and not absolutely void. Philpot v. Bingham, 55 Ala. 435; Manning v. Johnson, 26 Ala. 446; Clark, v. Goddard, 39 Ala. 164; 1 Amer. Lead. Cases (5th ed.), 242, 300; Bishop on Contr. §§ 260-266; 2 Greenl. Ev. §§ 364, et seq.; 7 Wait’s Act. & Def. 131; Rainwater v. Durham, 10 Amer. Dec. 637; Bool v. Mix, 17 Wend. 119; Wheaton v. East, 5 Yerg. 41; Taylor on Land. & Ten. §§ 93, 96; 2 Brick. Dig. 109, §§ 8, et seq.

The obligation here sued on was executed by the appellees while they were minors under the age of twenty-one years. It was given for rent of land for the year 1878, being payable to their mother, and was afterwards assigned to plaintiff. Under this state of facts, the plea of infancy was good, and the ■court did not err in giving the charge requested by the defendants.

The charges requested by the plaintiffs were properly refused. The record contains no evidence tending to prove a ratification, by the defendants of the contract of renting, which was for the year 1878 only. The action was commenced in October, 1878, by attachment; and from that time, to the date of trial, the defendants are shown to have been active in their effort to disavow their legal liability, and to resist all recovery by the plaintiff.—Eureka Co. v. Edwards, 71 Ala. 248; McCarthy v. Nicrosi, at present term post 332. The fact that the defendants retained and sold the crops which were raised by them on the premises, was no affirmation of their contract to pay rent. The consideration of the agreement sued on was not the ■crops, but the use of the land. It can not be maintained that. the appropriation by defendants of the fruits of their labor was such a positive and unequivocal act as to indicate an intention to bind themselves for the rent. Nor is it an act at all inconsistent with the right to repudiate such liability, as would be the sale or conveyance by an infant, after he becomes of age, of the land or personal property itself which he may have purchased, as constituting the consideration of the contract. Ratification may be inferred, as often decided, by the infant’s continuing to hold and treat tl$s property or thing purchased as his own, or by selling it after attaining his majority. Clearly the taking of a.new lease for another year, of the same land, after the expiration of the old one, would not come within the influence of this principle.—2 Greenl. Ev. § 367; Williams v. Mow, 11 M. & W. 256; Lawson v. Lovejoy, 23 Amer. Dec. 526.

The present agreement to pay rent is executory, and having been entered into during infancy, can be ratified only by “ an express confirmation, or new promise, voluntarily and deliberately made by the infant, upon his coming of age, and with knowledge that he is not legally liable.”—2 Greenl. Ev. § 367; Bish. on Contr. § 276; Thompson v. Lay, 16 Amer. Dec. 325.

We discover no error in the record, and the judgment is affirmed.