Taft v. Sergeant

18 Barb. 320 | N.Y. Sup. Ct. | 1854

By the Court, Welles, J.

In Goodsell v. Myers, (3 Wend. 479,) it was held that a negotiable promissory note, made by an infant, was voidable only, and not void; and might be affirmed after he came of age. In Everson v. Carpenter, (17 Wend. 419,) the same doctrine was held, except that it did not appear in that case that the note was in its terms negotiable. Delano v. Blake, (11 Wend. 85,) was decided upon the same principle j which was also recognized in Bay v. Gunn, (1 Denio, 108.) The same rule prevails in Massachusetts. (Martin v. Mayo, 10 Mass. R. 137. Whitney v. Dutch, 14 Id. 457. Reed v. Batchelder, 1 Metc. 559.) In the last case the note was negotiable. The infant, on coming of age, promised payment to the payee, who afterwards transferred the note to the plaintiff, and the latter was allowed to maintain the action in his own name. There are some authorities which hold that a promissory note made by an infant is absolutely void, and not merely voidable. But the only case I have found in the courts of this state which looks that way is Swasey v. Vanderheyden’s Adm'r, (10 John. 33.) In that case, however, there was no new promise, but the plaintiff relied upon the fact that the note was given for necessaries. There are other authorities which agree with Swasey v. Vanderheyden. But I think the tendency of modern decisions f is to consider the acts of infants, generally, as voidable merely, || and to leave them, when they come of age, to affirm or disaffirm S their contracts, as their own views of interest may lead them to J elect.

I The defendants’ counsel contends that the new promise is not binding as a ratification, for the reason that there is nothing to I show that, at the time it was made, the defendant knew that he | was not liable, by reason of his infancy, to pay the note, and that he made such promise for the purpose of waiving his priv- * ilege of infancy. It is sufficient to say that there is no evidence | to show he was ignorant of his rights. He is presumed to know Í the law, and I think the presumption is that he knew the facts | necessary to establish Ms exemption from legal liability, before | making the new promise. It seems he found them out when he | was sued, and it does not appear that any additional information I was communicated to Mm in the mean time.

It is also contended, on the part of the defendant, that the new promise was not an unconditional absolute promise to pay the note, but a promise to turn out the note of a third person for a part, and pay the balance; and that the complaint, instead of being in the ordinary form, upon the note, should have been upon the special agreement. The new promise was an affirmance or ratification of the note. All the advantage the defendant could take of its provisions, was to comply with them, and then the note would be satisfied. Failing to -do so, his liability on the note directly is complete. The note stands revived and ratified, and discharged of the special contract in relation to the mode of payment. Besides, it was an unconditional promise to pay; to pay fifty dollars by turning out to the plaintiff a note of that amount against one Johnson, arid the balance in money. In Rew v. Barber, (3 Cowen 272,) where the plaintiff bought a horse of the defendant and paid him in a note against a third person, and the horse was afterwards taken from the plaintiffs by virtue of an execution against a former owner, and the plaintiff thereby lost the possession and title to the horse, he was permitted to recover of the defendant the consideration paid, in an action for money had and received. I have examined the case of Taylor v. Stedman, (3 Iredell’s L. Rep. (N. C.) 97,) which it is supposed favors the objection under consideration, but cannot bring my mind to approve or follow it. I think, moreover, it is distinguishable from the case at bar, inasmuch as the promise there was to turn out notes and judgments which the defendant was to guarantee to be good.

[Monroe General Term, September 4, 1854.

It was not claimed before the referee, that the reply was not sufficient to admit the proof, if admissible under any state of pleadings. No demand of the fifty dollar note, which the defendant agreed to turn out, was necessary. And this, I think, disposes of the next point of the defendant’s counsel, that the promise to turn out the note was void by the statute of frauds. (2 R. S. 136, § 3.) It was not a sale, or a contract for the sale of the note, but a means agreed upon by the parties for the pay-merit of the note in suit, which was recognized and treated as a valid and subsisting debt.

The judgment at special term should be affirmed.

Welles, Selden and Johnson, Justices.]