West v. Penny , 16 Ala. 186 ( 1849 )

COLLIER, C. J.

The contracts of an infant are in general voidable and may be confirmed when he comes of age; those alone are treated as absolutely void, which are certainly and in their nature prejudicial to his interest. 2 Greenl. Ev. § 367; Story on Con. § 57, 2d edit. In the latter case, the presumption is almost irresistible, that some unfair advantage has been taken of him, or some injurious influence has been exerted. The difference in this respect between the contracts of adults and infants is, that in the one case injury is only evidence of imposition, while in the other it is an uncontrolable presumption thereof, because of the inexperience of the infant. Thus where a bond is executed by an infant as a surety, or where a release is executed by him to his guardian, inasmuch as these cannot be for his benefit they are void. To these might be added a few other examples. It is however, the policy of the law, not to incumber the free action of infants by disabilities, but only to allow them the right to suspend their ultimate decision upon a doubtful question of benefit until they shall be of full age, and placed on a footing similar to that of the other contracting party. Hence the courts lean to construing the contracts of infants to be voidable only. Id. See also Story on Con. §§ 58, 59; Waples v. Hastings, 3 Har. Rep. 403; Lawrence v. McCarter, 10 Ohio Rep. 37; Patchin v. Cromach, 13 Verm. Rep. 330; Bouchell v. Clary, 3 Brev. Rep. 194; Reed v. Bachelder, 1 Met. Rep. 559; Oliver v. Hondlet, 13 Mass. Rep. 237; Whitney v. Dutch, 14 Mass. Rep. 457; Maples v. Wightman, 4 Con. Rep. 376; Thompson v. Hamilton, 12 Pick. Rep. 425; Fridge v. The State, 3 Gill & Johns. Rep. 103; Tucker, et al. v. Moreland, 10 Pet. Rep. 58, Zouch v. Parsons, 3 Burr. Rep. 1794; Fant v. Catchcart, 8 Ala. Rep. 725.

In the celebrated opinion of Lord Mansfield, in Zouch v. Parsons, supra, it is said, “ if a new case should arise where it would be more beneficial lo the infant, that the deed should be considered as void; if he might incur a forfeiture or be subject to damages, or a breach of trust, in respect of a third person, unless it was deemed void — the reason of the privilege would warrant an exception in such case to the general rule.” The Court of Appeals of Kentucky said: “We incline to the opinion expressed by Lord Mansfield, that there is no instance where the other' party to a deed can object' on account of infancy,, and consequently that no deed of an infant is void for infancy only, unless one might be so, which would be embraced in the following classification suggested by the same jurist.” The classification referred to is embraced in the paragraph above quoted.

The contract evidenced by the writing declared on, does not come within either of the classes stated in Zouch v. Parsons. It certainly does not subject the dtfendant to damages or a breach of trust in respect of a third person, so far as we can judge from its terms, but left him free to perform all the duties and obligations he was under to others. Nor can it be assumed that the contract was necessarily prejudicial to the defendant. Pie may perhaps have been well1 compensated for the service which he stipulated to perform; or it may be, that he desired or intended to go to Tennessee on business other than the plaintiff’s, and that the payment of his expenses was really a benefit to him. The defendant’s undertaking did not require any unusual skill and judgment, but only that he should be the bearer of money a few hundred miles, through a country in which little danger was to be encountered and pay it to persons designated to receive it. It can hardly be necessary to consider what would be the measure of damages upon such a contract if the defendant had been an adult, or whether it could be more than the amount of money converted. Be this as it may, it is clear that the recovery against the defendant cannot exceed the sum he has promised to pay since he attained his majority; this we understand' to be the money appropriated with interest. But of this the jury must determine from the evidence. In every point of view in which we have been able to consider the defendant’s engagement, it seems to us to be voidable merely, and capable of confirmation after he came of age.

The adoption or affimance of a contract or waiver of a de- j fence by an infant on obtaining his majority, will make the I contract valid from its date, and an action need not be brought ,: on the new promise. Whitney v. Dutch, 14 Mass. Rep. 457; Kline v. Bebee, 6 Con. Rep. 494. But where the contract is evidenced by a bond with a penalty, the action must be brought upon the new promise; the simple contract debt not being merged in the bond. Bayley v. Denly, 3 M. & S. Rep. 477; Thornton v. Illingsworth, 2 Barn. & C. Rep. 824. An infant after attaining his majority may affirm his deed, which is voidable only, by a verbal promise without writing. Houser v. Reynolds, 1 Hayw. Rep. 143; Kline v. Bebee, supra; Fant v. Cathcart, 8 Ala. Rep. 725.

The promise made to pay a debt contracted during minori- • ty, in legal effect is a waiver of the defence of infancy, and an election to consider it valid. It is consequently immaterial whether the original contract was entered into by deed or other less solemn writing; a verbal adoption of it,, after the party who- assumed the duty came of age, would be quite as effectual as a promise under seal to pay, or perform it. This being the case, it is clear that the defence of infancy being excluded the voidable contract becomes valid from the time it was made, and may be declared on without noticing the subsequent confirmation further than to reply it, if infancy should be pleaded. The case of Crawford and another v. Childress’ ex’rs, 1 Ala. Rep. 482, bears no analogy to the present. The question ther.e was, whether a verbal acknowledgment by the obligor will prevent the statute of limitations from running against a bond, or will revive a remedy upon it after the bar of the statute has become complete. Under the influence of our statute and the construction which had been placed upon similar enactments in other States, we held that a mere verbal acknowledgment was insufficient to arrest the operation of the act, or to revive the remedy upon the bond.

Without adding more, we have only to declare that the judgment of the Circuit Court is reversed, and the cause remanded»