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stoou by the creditor as expressive of the intention to pay it; for this would be a promise by implication. There are no par. ticular words or phrases which the law requires or favors as a confirmation. No ratification or confirmation can be used in any action which was brought before the ratification was made. It must also be made voluntarily, and with the purpose of assuming a liability from which he knows that the law has discharged him. And if it be a conditional promise, the party who would enforce it must prove the condition to be fulfilled. Thus, if the plaintiff relies on a new promise, and asserts and proves that the defendant said, after full age, “I will pay when I am able," he must also prove that the defendant was able to pay when the action was brought.
If an infant's contract is not avoided, it remains in force. And it may be confirmed without words; and the question sometimes occurs, whether confirmation by mere silence, after a person arrives at full age, prevents him from avoiding his con tract made during his infancy. As a general rule, mere silence, or the absence of disaffirmance, is not a confirmation ; because it is time to disaffirm the contract when its enforcement is sought.
But if an infant buys property, any unequivocal act of ownership after majority—as selling it, for example—is a confirmation of the purchase. And, generally, a silent continued possession and use of the thing obtained by the contract is evidence of a confirmation; therefore, if an infant buys a horse, and gives his note for it, and after he is of age the seller puts the note in suit, the buyer may return the horse and refuse to pay the note; but if he keeps the horse, this is considered evidence of a confirmation of the note. The evidence of confirmation is much stronger if there be a refusal to re-deliver the thing when it can be re-delivered; and is generally conclusive, when the conduct of the party must either be construed as a confirmation, or, if not so construed, must be regarded as fraudulent, or wrongful. Thus, where an infant purchased a potash-kettle, and gave his promissory note for the price, it being agreed by the parties that he might try the kettle, and return it if it did not suit him; and the vendor, after the infant became of age, requested him to
return the kettle if he did not intend to keep it; but he retained and used it a month or two afterwards. The court held that this was a sufficient ratification of the contract, and that an action might be sustained on the note.
The great exception to the rule that an infant's contracts are voidable, is when the promise or contract is for necessaries. The rule itself is for the benefit and protection of the infant, and the same reason causes the exception; for it cannot be for the benefit of the infant that he should be unable to purchase food, raiment, and shelter, on a credit, if he has no funds. The same reason, however, enlarges this exception, until it covers not only strict necessaries, or those without which the infant might perish, or would certainly be uncomfortable, but al? those things which are certainly appropriate to his person, station, and means.
There is no exact dividing line which could make this defini tion precise. But it is settled that mercantile contracts, as of partnership, purchase and sale of merchandise, signing notes and bills, are not necessaries, and that all such contracts are voidable by the infant. So, if he gives his note even for necessaries, he is not bound by it; but may defend against it on the ground that it was for more than their true value; and the jury will be instructed to give against him only a verdict for so much as the necessaries were worth.
If he borrows money, to be expended in the purchase of necessaries, and gives his note, the debt, or the note, has been held, at law, voidable by the infant. But our courts would now hold an infant liable for such a debt; and it is well settled that an infant is liable for money paid at his request for necessaries for him; and if he give a note for necessaries with a surety who pays it, the surety may recover against the infant.
If an infant avoid a contract, he can take no benefit from it; thus, if he contracts to sell, and refuses to deliver, he cannot demand the price; or if he contracts to buy, and refuses the price, he cannot demand the thing sold.
An infant is as liable for torts (by which the law means wrongs or offences) as an adult; but it has been held that if he fraudulently represented himself as of age, when he was not
and so made a contract which he afterwards sought to avoid he could not only avoid the contract but was not answerable for the fraud, it being a part of the same transaction. But if he disaffirms a sale, for which he has received the money, he must return the money, if he still has it; because keeping it would be a wrong, or a confirmation of the sale. So if after his majority he destroys or puts out of his hands a thing bought while an infant, he cannot now demand his money back, as he might have done on tendering the thing bought; for by his disposal of it he has acted as owner, and confirmed the sale.
In general, if an infant avoids a contract on which he has advanced money, and it appears that he has received from the other party an adequate consideration for the money so advanced, which he cannot, or will not restore, he cannot recover back the money which he advanced. But if an infant has engaged to labor for a certain period, and, after some part of the work is performed, rescinds the contract, he can recover for the work he has done, as much as that work was worth.
The contract of an infant is voidable only by him, or by those having a right to act for him, and not by the other party. The election to avoid or confirm belongs to the infant alone; and his having this right does not affect the obligation of the other party. Therefore, one who gives a note to an infant, or makes
any other mercantile contract with him, must abide by it, unless the infant annuls it, which he can do if he chooses to.
But if the note were given or the contract made by a fraud on the part of the infant, the injured party has the same right of defending against it on this ground as if the fraudulent party were not an infant. And it is a universal rule of the law, that no contract which is tainted with fraud is valid against an innocent party; therefore, a wilfully false representation of the infant that he has reached his majority would be a fraud, and would enable the party dealing with him to set the contract aside.
A father is bound to supply an infant child with necessaries; and, if he does not, is liable for their value to any person who supplies them. And for these, as we have seen, the child him self is also liable.
Although in most of our States the law does not require that
the confirmation or new promise of an adult, of a promise which he may avoid because it was made by him when an infant, must be in writing, it would always and everywhere be better and safer to have this new promise in writing. It should be in substantially this form :
(1.) 1, Henry Thompson, having promised Nathan Green, to (here describe the promise, whether by a note, or verbally, for goods bought, or the like, briefly, but so that there may be no mistake about it) and at the time of making that promise I was a minor, within the age of twenty-one years, now, in consideration of said promise, I do hereby confirm and acknowledge the same, and promise a full performance and execution thereof. HENRY THOMPSOS.
It would often be easier, if both parties assented, simply to give a new note for the amount due. But it might, in many cases, be better that the new promise should tell the story of the old promise for which it is given.
APPRENTICES. The contract of apprenticeship is generally in writing, and is also most frequently by deed, (or writing under seal,) and is to be construed and enforced as to all the parties by the common principles of the law of contracts. Usually, the apprentice, who is himself a minor, and his father or guardian with him, covenant that he shall serve his master faithfully during the term. And the master covenants that he will teach the apprentice his trade; but the instrument is not made invalid by the omission to specify any trade or profession as that to be taught. He also covenants to supply him with all necessaries, and at the end of the term, give him money or clothes. Slight informalities would not make the instrument void. Even if they are of sufficient magnitude to have this effect, the instrument will prescribe and measure the claim of each of the parties against ihe other, if they have lived under this instrument as master
and servant. But the apprentice's consent will not be inferred (rom his mere signature, but must be expressed.
In case of sickness the master is bound to provide proper medicines and attendance. The master cannot transfer his trust, or his rights over the apprentice. He has no right to employ the apprentice in menial services not connected with the trade or business which he has agreed to teach him. And when he neglects to take due charge of the apprentice, the parent's or guardian's authority will revive.
The sickness of the apprentice, or his inability to learn of to serve, without his fault, does not discharge the master from his covenants, because he takes this liability on himself. Nor will such misconduct as would authorize a master to discharge a common servant, release the master of an apprentice from his liability on his contract. But if the apprentice deserts from his service, and contracts a new relation which disables him from returning lawfully to his master, the latter is not bound to receive him again if he offers to return.
Not only a party who seduces an apprentice from his service is liable, but where one employs an apprentice without the knowledge and consent of his master, the employer is liable to the master for the services of the apprentice, although he did not know the fact of the apprenticeship. It may be added that if an action be brought for harboring an apprentice against the will or without the consent of his master, the plaintiff is bound to prove that the defendant had a knowledge of the apprenticeship. But a defendant who did not know the apprenticeship when he hired or received the apprentice, and who being informed thereof continued to retain and harbor him, thereby makes himself liable.
(2.) A General Indenture of Apprenticeship, as sometimes
used in New England. This Indenture, Made the
by and between A. B and C D. his son, of the age of years, of the one part and R. J. of of the other part, witnesseth, that the said C. D., by and with the consent of the said A B. (testified by his signing and sealing these presents) hath bound out himself as an apprentice, to of
to be taught in the said trade, science or occupation