Lynch v. Johnson , 109 Mich. 640 ( 1896 )

Grant, J.

(after stating the facts).

1. When the motion was made, defendant had not rested, and, after its denial, proceeded to introduce testimony. He thereby waived all rights under the motion. Totten v. Burhans, 103 Mich. 6, and cases cited; Morley v. Insurance Co., 85 Mich. 210. The motion, however, was properly denied. The burden of proof to show infancy was on the defendant. Simmons v. Simmons, 8 Mich. 318; Stewart v. Ashley, 34 Mich. 183.

2. The only evidence of defendant’s age was the testimony of his father, and it is now urged that the court erred in submitting this question to the jury. It is a sufficient reply to this contention that the defendant did not request the court to so instruct the jury. We need not, therefore, determine the question whether defendant’s age was conclusively proven.

3. These clothes were within the class known as-“necessaries.” The burden of proof was then upon the defendant to show that they were not necessaries, and that he was supplied with all such necessaries by his father. Tyler, Inf. §§ 74, 75. * If defendant had been living at home with his parents, a different rule would obtain. .Schouler says, “An infant, when absent from home, and not under the care of his parents, is usually liable for his own necessaries.” Schouler, Dom. Rel. § 413; 1 Add. Cont. 124; 10 Am. & Eng. Enc. Law, 664. The question whether these clothes were necessaries was properly submitted to the jury.

4. Was the question of ratification properly submitted to the jury ? The contracts of infants are divided-'by the authorities into three classes: (1) Those, absolutely void, which are, as a matter of law, disadvantageous to the infant, and under no circumstances for his benefit; (2) voidable contracts,—those which may or may not be for his benefit; (3) binding contracts,—that is, contracts for necessaries. If the jury found that the defendant was of age at the time the contract was made, or that the clothes were necessaries, it would be unnecessary to consider the question of ratification. The verdict, however, was a general one, and may have been based upon ratification. Upon this question there appears to be a hopeless confusion in the decisions. It was early very generally held that these contracts were absolutely void, and that there must be an independent and express promise, after coming of age, to pay for them. This strict rule has been relaxed by the modern decisions, and while mere silence is not enough, where the doctrine of estoppel is not applicable, courts have adopted the more reasonable rule that where the party, on coming of age, has made a distinct acknowledgment of the contract, and has indicated an intention to be bound by it, he will be held to have ratified it. This is usually a question of fact, for the jury. Silence and acquiescence have been held sufficient where it would be inequitable to permit the defense of infancy. Terry v. McClintock, 41 Mich. 492; Langdon v. Clayson, 75 Mich. 204.

This was not a void, but a voidable, contract. Defendant was absent from home, at work for himself. There was nothing to indicate to plaintiff that he was not of age. The clothes were furnished, and defendant had the use of them. He did not plead infancy when the account was presented, nor on the return day of the summons, nor in the letter. There is no claim of unfair dealing, fraud, or overreaching. The letter was a plain recognition of the debt, and a promise to pay it in full if he could get an extension of time. We think the court committed no error in leaving the question of ratification to the jury. Upon this question the case of Henry v. Root, 33 N. Y. 526, is a leading and exhaustive case. The authorities are there cited and commented upon, and the history and growth of the jurisprudence upon this subject are stated. See, also, Bay v. Gunn, 1 Denio, 108.

The judgment is affirmed.

Moore, J., concurred with Grant, J. Montgomery and Hooker, JJ., concurred in the result. Long, C. J., did not sit.