32 N.H. 345 | N.H. | 1855
The pleadings and agreed statement of facts present two distinct questions for consideration ; first, was there, in the circumstances stated, such a ratification by the defendant, after he became of age, of his premium note, or the contract of insurance, as amounted to a new promise to pay it; and secondly, is a contract for a policy of insurance a contract for necessaries, such as will bind the infant absolutely.
The subject of the ratification of his contract by an infant after arriving at maturity, has heretofore been pretty fully considered in this State, in the cases of Hale v. Gerrish, and Aldrich v. Grimes, cited by the defendant’s counsel. It seems to be the doctrine of these, and the tendency of most of the later decisions, that the contract of an infant, where it might be for his benefit, is not absolutely void, but voidable at the election of the infant, and that it may be ratified and made valid by the acts of the infant after attaining full age.
As to what acts will amount to a ratification of the contract in this class of cases, TTpham, J., in delivering the opinion of
This seems the true rule on this subject, clearly and unequivocally expressed, and by it the first question in this case is decisively settled in the negative. There is nothing in the agreed statement of facts as to the conduct of the defendant, after he became of age, in relation to his insurance by the plaintiffs, which approximates to what is necessary to bring this case within the rule. There is no claim of any express promise, and the alleged acts of ratification are entirely of a negative character. There is no positive act in favor of the contract, much less any of that express and decided character which would constitute perfect evidence of a ratification, such as would be equal to an express and unequivocal promise. The defendant has done nothing in relation to his contract. He seems to have remained entirely passive until called upon in this suit, when he availed himself of the plea of infancy in avoidance of his assumed liability. This is as far as possible removed from that positive action in favor of his contract, indispensable to make it valid and binding.
But the plaintiffs contend that the defendant was bound, on coming of age, to give notice of his disaffirmance of the contract in a reasonable time, otherwise he is to be considered as having affirmed it. If there be any such general rule as that for which the counsel contends, it can be applicable only in those cases where the infant, after coming of age, is in possession, by virtue of the contract of his minority, of something of value to him, the retaining of which might justly be construed as an election to appropriate the fruits of that contract to his own personal and pecuniary advantage. Such is not the condition of things under consideration. Long before arriving at maturity the defendant transferred and sold the property insured, so that by its
■ We are, therefore, clearly of opinion that there is nothing in the acts of the defendant after he became of age which can properly be regarded as such an affirmance of the contract of insurance as to make it legally binding upon him.
The remaining question we have carefully considered. For, as has been well suggested by the plaintiff’s counsel, although an infant might not be liable to pay for the goods constituting'his stock in trade, yet, having the goods, and being so engaged in trade, it would manifestly be for his interest, and would seem almost necessary for the security of his property, that it should be insured against loss or damage by fire. But it is evident from the most cursory examination, that the contract being advantageous or disadvantageous to the infant or his estate, furnishes no reliable test on the point, as to whether or not the subject matter of such contract is properly included within the term necessaries. Yery many things can be mentioned, the acquisition of which must undoubtedly have been beneficial to the infant or his estate, contracts for which have been repeatedly and uniformly holden voidable, at the election of the infant.
In Phelps v. Worcester, 11 N. H. 51, it was holden that the ■ services and expenses of counsel in carrying on a suit to protect the infant’s title to his estate, could not be regarded as necessaries, and that the infant’s liability for them might be avoided, even under an express promise to pay for them. TJpham, J., in pronouncing the opinion of the court, remarked — “ The inquiry has been made, if there had been no guardian, and the infant were without aid, whether he might not employ others to protect his rights to his property, and be legally holden, notwithstanding the interposition of his minority. We think clearly not. Though such services may promote the sound interests of the ward [infant ?] they are not such assistance as comes within the term necessaries. Lord Colee considers the necessaries of the
Now, if the services and expenses of counsel in protecting the property of an infant, are not necessaries, on what principle can it be contended that the insurance of that property against loss by fire can be ? The object is the same in both cases — the protection and security of the infant’s property ; and instances can readily be conceived where the services of learned and experienced counsel might be quite as valuable and important as any contract of insurance. The test of beneficiality, then, cannot be relied on as determining whether or not a thing is to be reckoned among necessaries.
But it seems to us the suggestion in the case last cited, that necessaries concern the person and not the estate, furnishes the true test on this subject. Although there may be isolated cases where a contrary doctrine has obtained, we apprehend the true rule to be, that those things, and those only, are properly to be deemed necessaries, which pertain to the becoming and suitable maintenance, support, clothing, health, education and appearance of the infant, according to his condition and rank in life, the employment or pursuit in which he is engaged, and the circumstances under which he may be placed as to profession or position. Coke Lit. 172, a; Whittingham v. Hill, Cro. Jac. 494; Ive v. Chester, Cro. Jac. 560.
If this be so, then matters which pertain only to the preservation, protection, or security of the infant’s property, are excluded from'the list of necessaries, however beneficial. Whatever relates to his property is the legitimate business of a guardian, and if transacted by the infant may be avoided at his election.
Such are our convictions of the proper limit of the validity of the contracts of infants. Any other limitation would, it seems to us, lead to an almost interminable variety of decisions on this subject, and tend to destroy those safeguards which the wisdom of the law has established to protect the inexperience and ere
Had we arrived at a different conclusion on the last point, the question might have arisen, whether this action could be maintained on the present declaration, the only count in the writ, so far as appears, being upon the note, which is avoided by the plea of infancy, the same not having been ratified by the defendant after he became of age. The result to which we have come, however, renders it unnecessary to enter upon this inquiry.
According to the provisions of the agreed ease, there must be
Judgment for the defendant.
