Thing v. Libbey , 16 Me. 55 ( 1839 )

The opinion was drawn up by

Emery J.

The expectation of the plaintiffs in this case is to charge the defendant, who was a minor at the time of giving the note in suit, for a stock of goods sold and delivered to the defendant several months previous to its date. Such of the goods as remained on hand, to the amount only of fifty dollars, several weeks before giving the note, the defendant had in good faith assigned and transferred to one Samuel Page to secure him for certain debts due to Page, and liabilities on his account. All the rest of the goods had been fairly sold. After this mortgage of the goods to Page, which were delivered to him on the assignment, they were left in the defendant’s possession in trust to sell and apply the proceeds to Page’s benefit, and it is insisted, that these acts of the infant, shewing a determination to retain the benefits of the contract, amount to a ratification of the whole contract.

The cases of Hubbard & al. v. Cummings, 1 Greenl. 11; Dana & al. v. Coombs, 6 Greenl. 89; Lawson v. Lovejoy, 8 Greenl. 405 ; 3 Burr. Rep. 1717; Com. Dig. Enf. c. 6, are relied on to support this position.

In Lawson v. Lovejoy, the defendant had sold the property after be became of age.

In the present case, the defendant had only a qualified right of possession in trust for Page. He could not under these circumstances have legally delivered them for any purpose inconsistent with the trust. The court in Lawson v. Lovejoy, say they do not decide whether the law would afford any remedy for one who had sold his chattels to an infant by whom they had been converted into cash during his infancy, there being no subsequent confirmation of the contract. No new promise has actually been made by the defendant. And such a promise must be made before the commencement of suit or it cannot be given in evidence. Ford v. Phillips, 1 Pick. 202.

The demand subsequent to the commencement of the suit, and the refusal to release the residue of the goods because they were Page’s, we think ought not to be regarded as amounting to a ratification of the contract so as to charge the defendant upon this note. There was no offer by the plaintiffs to give up the note at the time the demand was made. If the doctrine be, that the privilege extended to infants should he a shield, it would seem, that his acts which amount to a confirmation ought to be of such an unequivocal nature as to establish a clear intention to confirm the contract, after coming of age, after a full knowledge that it was voidable. Tucker v. Moreland, 10 Peters, 75, 76.

This was in case of a deed, it is true. But it should be voluntary, not obtained by circumvention, nor under ignorance of the fact that he was entitled to claim the privilege.

The plaintiff must be nonsuit.