Hoit v. Underhill

10 N.H. 220 | Superior Court of New Hampshire | 1839

Parker, C. J.

It appears that the defendant, after he became of age, before this suit was commenced and before the appointment of a guardian, made a promise that he would pay the plaintiff the debt now claimed. The promise was made to a person who was in fact the agent of the plaintiff, specially authorized to call on the defendant and see what he would say, and if he would not pay what the plaintiff had paid for him. In this respect this case differs from the case before us at the last term. 9 N. H. Rep. 436. It does not appear, however, that the fact that the person was agent of the plaintiff was disclosed to the defendant at the time.

Upon this evidence, it is objected, that there could be no contract, because the defendant, if he made the declaration without knowledge that the party to whom he made it was agent, could not have understood that he was making a contract, but must have made a mere declaration of intention.

This objection comes, perhaps, with a better grace from a guardian of the defendant than it would from the party himself. It may well be answered, that the- promise of an infant, when he becomes of age, operates only to remove the legal bar to a recovery, on a contract made before. The suit is on the original contract. And an infant may remove this bar, without any communication with the creditor, or any agent of his. It is well settled that he may ratify the contract by his act. Aldrich vs. Grimes, ante 194; 3 N. H. Rep. 315, Orvis vs. Kimball, and auth. cited; 1 N. H. Rep. 75, Roberts vs. Wiggin. And this not only without the presence of the creditor, or any agent of his, but without his having, at the time, either by himself, or any agent, any knowledge whatever of any such ratification. That he may ratify by acts alone, shows that the action should not be instituted on the new promise, if there is one, and that the original contract is the foundation of the suit, although it furnishes no legal cause of action until it is ratified after the party is of full age. 6 N. H. Rep. 372, Merriam vs. Wilkins; 7 N. H. Rep. 372; (8 N. H. Rep. 432.)

It is not necessary, therefore, that there should be a new contract, according to the technical definition of a contract. There is no need of a new bargain between the creditor and debtor. The infant may ratify after he is of age, even against the consent of the other party.

While, then, in order to guard his rights, he should not be bound by loose declarations of his intentions, (3 N. H. Rep. 315) or by any mere expression of an intention to pay, made to a person having no authority whatever in the matter, (9 N. H. Rep. 436) it would seem to be enough, if the ratification is made by a deliberate declaration, made to a third person, who was in fact agent, on an application well calculated to lead him to presume that the party thus applying came in behalf of the creditor, without any express declaration of authority, and without any express evidence that the defendant had knowledge of the authority. And rve are of opinion that this evidence is sufficient to sustain the action.

The other evidence in the case, if it stood alone, is sufficient to charge the defendant. A promise by the defendant, after lie was placed under guardianship, or after suit, would be insufficient: but an admission, after suit, of a promise made before the suit, would be competent evidence where no guardianship existed; and the guardianship does not change all the ordinary rules of evidence. The defendant might be charged for any tortious acts, notwithstanding the guardianship; and those acts might be proved, we think, by his confessions ; and if so, he may make declarations in relation to his previous transactions, which will be competent to be weighed by the jury. He could not make a contract after he was placed under guardianship, and the evidence was not offered to prove one. It was offered for the purpose of showing that he had previously made such contract, or ratified one, and was in that point of view admissible, and to be weighed by the jury. Unless they believed that the promise was actually made before the guardianship, and before the suit, the evidence of the admissions would be unavailing to sustain the action ; but there was no evidence tending to contradict it, and no desire to have the jury pass upon it. As the evidence was rightly admitted, there must be

Judgment on the verdict.