21 Mich. 304 | Mich. | 1870
On the 2d day of January, 1866, and for some time theretofore, the plaintiffs in error Avere doing business as partners in the sale of merchandize at Holly, in this state,
It is objected by plaintiffs in error that the notes were void as against Minock, but if not, that the facts found did not amount to a ratification.
If the contracts of Minock were nullities, there was of course nothing to be validated by any subsequent act or declaration of his, however formal and explicit, and evidence admitted to show a mere ratification was unauthorized, and the ruling that a ratification had been shown was erroneous. It is impossible to reconcile the cases on this subject. All or nearly all of the early authorities, as well as some of the modern ones, support the position taken by counsel for the
Much confusion has undoubtedly arisen in respect to the engagements of minors, as well as in many other cases, either from an incautious use of the word “void” and “voidable,” or their reception or application in a loose or inappropriate sense.
The executory contract of an infant, such as a promissory note, is not void in the sense of being a nullity, because it may be confirmed, but it has no binding force until it is confirmed. Being executory, and not binding until confirmed, it is said to be voidable, but as thus applied this word is to be, understood in a sense quite different from that which belongs to it when applied to the executed contract of an infant.
The general rule is that an executed contract is binding until avoided by words or conduct which show that the party refuses longer to be bound by it. But when it is said that the executory contract of an infant is voidable, the idea represented is that the contract is susceptible of confirmation or avoidance by the promisor, though it is not binding until it is ratified.
There can be no ratification without the assent of the person to be charged. And where the liability of the party depends upon his acts done after becoming competent to give a binding assent, the nature and extent of the liability will depend upon what he assents to, as ascertained from his words or relevant circumstances, and he can be held
In the case before us the Court found that Minock made no express promise on coming of age, but when called on for payment by the attorney for defendants in error, which must have been subsequent to the conversion of the goods, and also to the dissolution, he took the position that Hadden ought to pay more than half of the amount called for by the notes, and stated that, if he would do so, he,
I am therefore of opinion that the facts found do not establish a ratification of the notes. It would seem from the finding that a portion of the goods for which the notes were given was sold by plaintiffs in error before Minock became of age and the remainder after that time. No ground is discovered upon which a recovery could be claimed for the goods sold during Minock’s minority. The acts of sale during that time would not imply a promise by him to pay the value of the goods, when his express promise, if made at the same time, would not be binding upon him, and there is no claim that after coming of age he made any express promise to pay for the goods. The disposition of what remained after Minock became of age could not have the effect to raise a promise by implication, to pay for the property sold before that time.
When a liability to pay for goods purchased for mercantile purposes during minority is implied from retention or sale after majority, it is confined to the goods which are -retained or sold after that time. The principle appears to bo that the party arriving at an age which makes him competent to bind himself, and being in a situation to exercise an option to return the goods and so disavow the purchase, or to keep or sell them, and so evince a design to stand as purchaser, his choosing to keep or sell is to be considered as implying a purpose to hold the position of purchaser and an election to be liable in that character. If the option does not exist, if the particular goods cannot be restored in consequence of their disposition during the minority of the party, the ground for implying a liability for such goods is wanting.
I think, however, that the facts found would, upon well
The plaintiffs in error obtained them without payment, and, after Minoclc’s majority, retained and sold them and pocketed the proceeds; and the circumstances imposed upon defendants in error a duty to pay for them. In such a-case the law allows a recovery upon the theory that the parties undertook to do what it was their duty to do.
The defendants in error having elected to proceed against Minoek and Hadden jointly, the amount recoverable could not go beyond the sum chargeable against Minoek, nor beyond the contract price of the goods; hut a recovery according to the value of the goods, not exceeding the agreed price, would be legally unobjectionable.
The finding furnishes no data for ascertaining the amount for which judgment should he rendered upon the principle stated, and therefore it will be necessary to order a new trial.
The other questions presented become immaterial.
Tbe judgment must be reversed with costs, and a new trial ordered.