States require that the ratification be in writing signed by the party to be charged." At common law, a direct promise to pay a debt contracted during infancy, expressed verbally, is sufficient. The authorities are not uniform as to whether acts alone, or acts coupled with an acknowledgment of the debt, are sufficient, but they harmonize upon the proposition that when language is relied on to show ratification, while it may be either oral or written and while it need follow no particular form, it must be voluntarily and understandingly used and must indicate an intention to pay the debt;"1 a mere acknowledgment thereof by the infant after becoming of age will not bind him." The more carefully considered decisions hold that it is not necessary to a binding ratification that the party sought to be charged knew at the time the promise. was made that he had a right to avoid the contract. All men are presumed to know the law. The defense of infancy is optional, and an express promise to pay is not the only method by which the defense may be precluded; any other act or declaration which satisfies the court that the contract duty is still binding and intended to be complied with, if voluntarily done, neutralizes the defense of infancy." 35. The ratification of an infant's contract may also be implied from such affirmative acts as selling, mortgaging, or converting to his own use, after attaining majority, the property purchased or procured." Retaining or enjoying the property purchased as owner after attaining majority, will, in the absence of dissent within reasonable time, operate as a complete ratification; so, also, if he remain in possession of lands leased to him. In the same manner a written agreement entered into by an infant for the performance of services is ratified and confirmed when the infant, after becoming of age, continues in the same employment under the same terms." 80 40 Me. 378 (1855). 819 Mass. 62 (1812). 82 17 Col. 506 (1892). 83 101 Ala. 658 (1893). FRAUDULENT CONTRACTS 36. Infants are, in many cases, liable for torts committed by them, but they are not liable where the wrong is connected with contract, and the result of the judgment is to indirectly enforce the contract." If the money grow out of contract relations and the real injury consist in the non-performance of the contract into which the party wronged has entered with an infant, the law will not permit the former to enforce the contract indirectly by counting on the infant's neglect to perform it or omission of duty under it as a tort. Upon this principle, it has been held that infancy is a good defense to an action on the case for false and deceitful warranty of a Fraudulent representations made by an infant to induce another to enter into a contract with him will not give the contract validity as against the infant." MARRIED WOMEN 37. At common law, the legal existence of the wife was merged in that of the husband, and, having no separate legal existence, she had no power to contract; her attempted contracts were absolutely void." The inconveniences and hardships of such a system called, at an early date, for special exceptions at law and special relief in equity. In all jurisdictions, the old rules were found oppressive and unjust, and almost everywhere changes by legislation have been made and are still being made." In many of the United States, scarcely a session of the legislature closes without the passage of some new enabling act in behalf of married women. The subject is, therefore, most voluminous, and there is no satisfactory method of determining the law in any jurisdiction, except by consulting the statutes and the cases construing them. So far, however, as the subject is capable of intelligible discussion, notwithstanding the disparity and confusion of legislation in the different jurisdictions, a somewhat detailed 86 108 Ind. 472 (1886). 87 19 Vt. 505 (1847). 88 54 N. Y. 249 (1873). 89 Bish. Cont, p. 949. treatment of the marriage relation, and the present capacity of married women to contract, is attempted under its appropriate title." For the present, it is sufficient to state that, by the legislation in England and in many of the United States, the powers of married women to enter into binding contracts have been advanced almost to full capacity, some of the statutes purporting to enable a married woman to contract as if she were single. INSANE PERSONS 38. Insanity is a condition due to disease of the brain. expressed by impairment of feeling, thought, and volition." At common law, the import of the term was total deprivation of sense; it was expressed by the words non compos mentis, and included both idiocy and lunacy. An idiot is one who has been without understanding or reasoning powers from his birth; a lunatic is one who has had understanding, but by disease, grief, or other accident, has lost the use of his reason." 93 The earlier views upon insanity have been greatly modified and extended by the courts, and while it was once held that an insane person could do no legal or binding act, it may now be regarded as settled that the mere fact of insanity, without more, does not disable a party to bind himself by any act or contract; and it does not exonerate him from responsibility, either civil or criminal." The proof which is designed to invalidate a man's act by reason of his insanity must show that the disease is of such a nature, or of such severity, that the person is incapable of understanding what he is doing, or of exercising a rational judgment in relation to the subject;" and, in the case of a charge of a crime, that he was incapable of distinguishing between right and wrong in the particular case, or of controlling the impulses of his own mind. 91 See The Law of Husband and Wife. 92 Hamilton's Legal Medicine, Vol. 2, p. 54; Am. Law Reg., Vol. 34, p. 251. 944 Coke (Eng.) 124 (1603). 95 45 N. H. 423 (1864). 931 Black. Comm. 303, 304; see The Law of Personal Rights. 39. Insanity may exist in various degrees - from the slight attacks, which are hardly to be distinguished from eccentricity, to uncontrollable madness. It may seem to affect all the operations of the mind, or it may exist only in reference to a single subject. In cases at the present day it is not a question as to whether or not the party was insane. The test of mental capacity is whether the party possessed sufficient mind to understand in a reasonable manner the nature and effect of the act in which he was engaged." CONTRACTS WHERE PARTY HAS NOT BEEN ADJUDGED A LUNATIC BY LAW 40. The early common-law doctrine that a man shall not be allowed to stultify himself by alleging his mental incompetency in avoidance of his contract is no longer fully accepted." Since the agreement of minds is of the essence of a contract, and since it is obvious that those who have no mind cannot agree in mind with another, it follows that they cannot contract; and, if one have not made a contract, it is difficult to discover any sound reason which should prevent him from saying so when he is charged as a party to one."* 41. In England, it is laid down as law, that when a person enters into a contract, and afterwards alleges that he was so insane at the time that he did not know what he was doing, and proves the allegation, the contract is as binding on him in every respect, whether it be executory or executed, as if he had been sane when he made it, unless he can prove further that the person with whom he contracted knew him to be so insane as not to be capable of understanding what he was about." In the United States, some of the decisions are not in harmony with this view. It has been held that, insanity being proved, it would not avail the other party to the contract to show that he was ignorant of the fact and practiced no imposition.100 96 45 N. J. Eq. 413 (1889). 97 47 Ind. 1 (1874). 98 Ibid., quoting 1 Pars. Cont., p. 383. 99 (1892) 1 Q. B. Div. (Eng.) 599. 100 144 Mass. 48 (1886). 101 While the question is not without difficulty, it is believed that the mere executory undertaking of a person of unsound mind is voidable on the part of the insane party contracting, who, on being restored to reason, may either avoid or confirm such contract.' Where, however, a contract has been made in good faith with an insane party for a full consideration, and executed by the other party without knowledge of the insanity or reason to suspect it, the contract will be sustained. The liability of the lunatic in such cases is upheld, not on the ground of contract, but on the fact that the lunatic has received and enjoyed an actual benefit from the contract.' These cases stand on the maxim that “he who seeks equity must do equity." 102 103 42. The general rule both in equity and law is that the mere fact that one of the parties to a contract is insane, not having been found to be a lunatic by judicial proceedings, does not render the contract void, but at the most only voidable, and is no ground for setting it aside where the other party had no notice of the insanity, and derived no inequitable advantage from it, and where the parties cannot be placed in statu quo." 105 104 43. Upon recovering his normal mental condition, it is the duty of an insane party to elect promptly, that is, within reasonable time, whether he will affirm or disaffirm, and, if he elect to do the latter, it is his duty to restore or offer to restore what he has received, so as to place the parties in statu quo. He cannot affirm in part and reject in part. The insanity of one contracting party does not give the other the right to avoid the contract." The right to avoid is merely for the personal protection of the insane, and can be exercised only by the insane person, his guardian, or representatives. The contract is binding upon the party who is sound of mind, and his rights under it are not affected until it is avoided by the party entitled to disaffirm it.107 1011 Gray (Mass.) 434 (1854); 5 Whart. (Pa.) 371 (1839). 102 78 Pa. 407 (1875). 10379 N. Y. 541 (1880); 94 Ind. 535 (1883). 106 104 54 Minn. 208 (1893). 105 67 Minn. 74 (1896). 106 163 Mass. 362 (1895). 1074 Allen (Mass.) 336 (1862). |