Bresee v. . Stanly ( 1896 )

The defendant pleaded infancy in avoidance of the note.

Plaintiff admitted on the trial the infancy of defendant at the time of the execution of the note, but relied upon the affirmance and ratification of the contract by the defendant after arriving at full age.

Verdict for the defendant. Plaintiff moved for a new trial (280) on the ground of error in charging the jury that according to the testimony of the defendant, he had not ratified the contract. Motion denied.

There was judgment for the defendant and plaintiffs appealed. The defendant was sued on a note for $130, and it was admitted that he was not twenty-one years of age when he executed it. The plaintiff contends that the defendant ratified and affirmed the contract after his majority, even if his own testimony as to what he said to the plaintiffs' agents is to be taken as true. He testified as follows: "I said it was a just debt and I would pay it, if I ever got so that Icould without inconvenience to myself. Mr. Perry, plaintiffs' agent, then asked me if I could not fix some time at which I would pay the note. I replied that I would not promise to pay the note in one year, nor in ten years, nor at any time." This promise, so carefully hedged about with saving conditions, recalled to the minds of some members of the court the story of a settlement of accounts in Iredell County, which it is thought may with propriety be preserved as history in the judicial annals of the State. Mr. James solicited his debtor, Huggins, to close an old open account by note. Huggins agreed to do so, provided (281) he should be allowed to draft the instrument, and accordingly presented the creditor the following:

"I, John Huggins, agree to pay James James one hundred and fifty dollarswhenever convenient, but it is understood that Huggins is not to be pushed. Witness my hand and seal, this the ___ day of __________ "JOHN HUGGINS. [SEAL]"

But viewing his statement in its legal aspect, in order to amount to a ratification of avoidable agreement entered into by an infant, a promise, made after arriving at his majority, must be unconditional, "express, voluntary and with a full knowledge that he is not bound by law to pay the original obligation." Alexander v. Hutchinson, 9 N.C. 535; Dunlap v.Hales, 47 N.C. 381. A case directly in point is that of Dunlap v. Hales,supra, where the infant, on arriving at full age, was sued on a note given for slaves and wrote a letter in which he first proposed to surrender the slaves, and then added, "If they will not accept of the above offer I will have to pay them, I suppose, but I shall do so at my convenience, as it will be nothing less than a free gift on my part." A different principle is applicable to executed contracts, as to which ratification may be inferred from circumstances (Petty v. Rousseau, 94 N.C. 355), but the promise must always be express and unconditional in order to impart validity to such agreements as that sued on here. There is

NO ERROR.

(282)