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states the ratification is required to be in writing; " but in most states no writing is necessary, and the ratification may be either by express language amounting to a new promise, as distinguished from a mere acknowledgment of the debt,85 or by conduct, as by using or selling the thing sold. Mere silence or failure to disaffirm does not constitute ratification.87

Contract for Necessaries.

An infant may procure necessaries, and be held liable for their reasonable value.88 The necessaries of an infant are stated in Co. Litt. 172, to be "his necessary meat, drinke, apparel, necessary physicke, and such other necessaries, and likewise for his good teaching or instruction, whereby he may profit himself afterwards." But the term includes also articles purchased for real use, although ornamental, as distinguished from such as are merely ornamental; 89 and it has been said "that articles of mere luxury are always excluded, though articles of lux

84 Clark, Cont. (2d Ed.) 166. Previous to the infants' relief act of 1874 (St. 37 & 38 Vict. c. 62), by which radical changes are made in the law governing contracts by infants, a writing was required in England. See Benj. Sales (7th Am. Ed.) § 27 et seq.

85 Ford v. Phillips, 1 Pick. (Mass.) 202; Thompson v. Lay, 4 Pick. (Mass.) 48, 16 Am. Dec. 325; Proctor v. Sears, 4 Allen (Mass.) 95; Wilcox v. Roath, 12 Conn. 550; Catlin v. Haddox, 49 Conn. 492, 44 Am. Rep. 249; Clark, Cont. (2d Ed.) 167.

se Boyden v. Boyden, 9 Metc. (Mass.) 519; Lawson v. Lovejoy, 8 Greenl. (Me.) 405, 23 Am. Dec. 526; Boody v. McKenney, 23 Me. 517; Deason v. Boyd, 1 Dana (Ky.) 45; Robinson v. Hoskins, 14 Bush. (Ky.) 393; Cheshire v. Barrett, 4 McCord (S. C.) 241, 17 Am. Dec. 735; Minock v. Shortridge, 21 Mich. 304; Philpot v. Manufacturing Co., 18 Neb. 54, 24 N. W. 428; Langdon v. Clayson, 75 Mich. 204, 42 N. W. 805; Hilton v. Shepherd, 92 Me. 160, 42 Atl. 387; Clark, Cont. (2d Ed.) 168.

87 Smith v. Kelley, 13 Metc. (Mass.) 309; New Hampshire Mut. Fire Ins. Co. v. Noyes, 32 N. H. 345; Durfee v. Abbott, 61 Mich. 471, 28 N. W. 521; Tyler v. Gallop's Estate, 68 Mich. 185, 35 N. W. 902, 13 Am. St. Rep. 336; Clark, Cont. (2d Ed.) 168.

88 It has sometimes been laid down, in general terms, that, if an agreement be for the benefit of the infant, it is binding. See Pol. Cont. 66; Clark, Cont. (2d Ed.) 150. In America the exception is confined to necessaries. But see Hall v. Butterfield, 59 N. H. 354, 47 Am. Rep. 209; Bartlett v. Bailey, 59 N. H. 408.

89 Peters v. Fleming, 6 Mees. & W. 42; Ryder v. Wombwell, L. R. 3 Exch. 90.

TIFF.SALES(2D ED.)-2

urious utility are in some cases allowed." " The word "necessaries" must, therefore, be regarded as a relative term, to be construed with reference to the infant's age, state, and condition."1 An infant, being considered in law as devoid of sufficient dis

* Chapple v. Cooper, 13 Mees. & W. 256, per Alderson, B.

91 Peters v. Fleming, 6 Mees. & W. 46; Wharton v. Mackenzie, 5 Q. B. 606; Davis v. Caldwell, 12 Cush. (Mass.) 513; Tyler, Inf. (2d Ed.) § 69 et seq. An enumeration of the various things which have been decided to be necessary or not necessary would be of comparatively little value, since the question, though to a great extent for the court, is one of judicial common sense in each particular case. The subjoined cases are cited for illustration. The followIng articles have been held not to be necessaries: A silver goblet for a gift. Ryder v. Wombwell, L. R. 3 Exch. 90, L. R. 4 Exch. 32. A collegiate education, In the absence of special circumstances. Middlebury College v. Chandler, 16 Vt. 686, 42 Am. Dec. 537. Traveling expenses for pleasure. McKanna v. Merry, 61 Ill. 177. A bicycle used in going home from the infant's place of work to dinner. Pyne v. Wood, 145 Mass. 558, 14 N. E. 775. It has been decided that the following things might be necessaries: A livery for a servant. Hands v. Slaney, 8 Term R. 578. A regimental uniform for a member of a volunteer corps. Coates v. Wilson, 5 Esp. 152. A horse, when required by the infant's position or health, Hart v. Prater, 1 Jur. 623; but not generally, Smithpeters v. Griffin, 10 B. Mon. (Ky.) 259; Beeler v. Young, 1 Bibb. (Ky.) 519; Harrison v. Fane, 1 Man. & G. 550; House v. Alexander, 105 Ind. 109, 4 N. E. 891, 55 Am. Rep. 189; Miller v. Smith, 26 Minn. 248, 2 N. W. 942, 37 Am. Rep. 407. A watch and jewelry, relatively to the infant's position. Peters v. Fleming, 6 Mees. & W. 46. See Berolles v. Ramsay, Holt, N. P. 77. A wedding suit. Sams v. Stockton, 14 B. Mon. (Ky.) 232. A lawsuit. Thrall v. Wright, 38 Vt. 494. Attorney's fees for defense in a bastardy process, Barker v. Hibbard, 54 N. H. 539, 20 Am. Rep. 160; or in prosecuting an action for seduction, Munson v. Washband, 31 Conn. 303, 83 Am. Dec. 151; or in prosecuting or defending criminal prosecution, Askey v. Williams, 74 Tex. 294, 11 S. W. 1101, 5 L. R. A. 176; Crafts v. Carr, 24 R. I. 397, 53 Atl. 275, 60 L. R. A. 128, 96 Am. St. Rep. 721; or in litigation relative to the infant's property, Epperson v. Nugent, 57 Miss. 45, 34 Am. Rep. 434 (Phelps v. Worcester, 11 N. H. 51, contra). It has been decided that the following things were not necessaries: Dinners supplied to an undergraduate at his rooms, in the absence of special circumstances. Brooker v. Scott, 11 Mees. & W. 67; Wharton v. Mackenzie, 5 Q. B. 606. Cigars and tobacco, prima facie. Bryant v. Richardson, L. R. 3 Exch. 93, note 3, 14 Law T. (N. S.) 24. Repairs on dwelling house needed to prevent serious injury. Phillips v. Lloyd, 18 R. I. 99, 25 Atl. 909.

cretion to carry on a trade or business, is not liable for goods. supplied to him for his trade or business, whether he is trading alone or in partnership.92 But, if married, his duties as husband and father are the same as if he were of full age, and things necessary for his wife and children are deemed necessaries for himself."

It is obvious that an article such as a diamond or a race horse may be intrinsically incapable of being a necessary, and that another article, though not intrinsically incapable of being a necessary, may fail of being such by reason of the circumstances of the case; for example, the age or condition of the infant, the quantity in which it is supplied, or the fact that his wants are suitably supplied by his parent or guardian, or from any other source." The principal difficulty in respect to necessaries

92 Whywall v. Champion, 2 Strange, 1083; Dilk v. Keighley, 2 Esp. 480; Merriam v. Cunningham, 11 Cush. (Mass.) 40; Mason v. Wright, 13 Metc. (Mass.) 306; Rainwater v. Durham, 2 Nott & McC. (S. C.) 524, 10 Am. Dec. 637; Decell v. Lewenthal, 57 Miss. 331, 34 Am. Rep. 449; House v. Alexander, 105 Ind. 109, 4 N. E. 891, 85 Am. Rep. 189; Wood v. Losey, 50 Mich. 475, 15 N. W. 557; Ryan v. Smith, 165 Mass. 303, 43 N. E. 109. But in Mohney v. Evans, 51 Pa. 80, the question whether farming supplies were necessaries was left to the jury, and, if he uses for necessary household purposes goods supplied to him as a tradesman, he becomes liable on what is so used. Turberville v. Whitehouse, 1 Car. & P. 94.

93 Turner v. Trisby, 1 Strange, 168; Rainsford v. Fenwick, Cart. 215; Tupper v. Cadwell, 12 Metc. (Mass.) 559, 562, 46 Am. Dec. 704; Davis v. Caldwell, 12 Cush. (Mass.) 512; Cantine v. Phillips, 5 Har. (Del.) 428; Price v. Sanders, 60 Ind. 311.

94 Johnson v. Lines, 6 Watts & S. (Pa.) 80, 40 Am. Dec. 542; Nicholson v. Wilborn, 13 Ga. 467.

95 Cook v. Deaton, 3 Car. & P. 114; Bainbridge v. Pickering, 2 W. Bl. 1325; Brooker v. Scott, 11 Mees. & W. 67; Swift v. Bennett, 10 Cush. (Mass.) 436, 437; Hoyt v. Casey, 114 Mass. 397, 19 Am. Rep. 371; Trainer v. Trumbull, 141 Mass. 527, 16 N. E. 761; Wailing v. Toll, 9 Johns. (N. Y.) 141; Guthrie v. Murphy, 4 Watts (Pa.) 80, 28 Am. Dec. 681; Hull's Assignees v. Connolly, 3 McCord (S. C.) 6, 15 Am. Dec. 612; Kline v. L'Amoureux, 2 Paige (N. Y.) 419, 22 Am. Dec. 655; Atchison v. Bruff, 50 Barb. (N. Y.) 381; Perrin v. Wilson, 10 Mo. 451; McKanna v. Merry, 61 Ill. 177; Englebert v. Troxell, 40 Neb. 195, 58 N. W. 852, 26 L. R. A. 177, 42 Am. St. Rep. 665. If the infant was already sufficiently supplied, it is immaterial that the seller was ignorant of the fact. Brayshaw v. Eaton, 7 Scott, 183; Barnes v. Toye, 13 Q. B. Div. 414; Johnstone v. Marks, 19 Q. B.

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consists in determining the province of the court and jury in ascertaining them. It is frequently stated in the American cases that the question whether articles come within the class of necessaries is for the court, and that the question whether they were necessaries in fact is for the jury. In England it has been settled that the question whether the articles were necessaries is one of fact, and therefore for the jury; but that, like other questions of fact, it should not be left to the jury unless there is evidence on which they can reasonably find in the affirmative. Practically, there is little difference in the two rules, for the cases involving articles intrinsically incapable of being necessaries are rare, and the question in most cases depends on the particular circumstances. It is impossible, therefore, in most cases, for the judge to say whether articles are within the class of necessaries, without taking into consideration the circumstances of the case; and if he determines that the articles do not, under the circumstances, come within the class, he in effect determines that there is not evidence on which the jury could reasonably find them to be necessaries. The

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Div. 509; Johnson v. Lines, 6 Watts & S. (Pa.) 80, 40 Am. Dec. 542. But having an income out of which the infant might keep himself supplied is not equivalent to being actually supplied. Burghart v. Hall, 4 Mees. & W. 727; Nicholson v. Wilborn, 13 Ga. 469; Rivers v. Gregg, 5 Rich. Eq. (S. C.) 274.

The complaint, in an action against an infant to recover for board furnished her, is not demurrable because it does not allege that the father or other person standing in loco parentis had refused or was unable to pay for the board furnished, or that there were no persons who could and should support her. Goodman v. Alexander, 165 N. Y. 289, 59 N. E. 145, 55 L. R. A. 781.

See Sales Act, § 2.

96 Tupper v. Cadwell, 12 Metc. (Mass.) 559, 563, 46 Am. Dec. 704; Merriam v. Cunningham. 11 Cush. (Mass.) 40, 44; Bent v. Manning, 10 Vt. 225; Stanton v. Willson, 3 Day (Conn.) 37, 56, 3 Am. Dec. 255; Glover v. Ott, 1 McCord (S. C.) 572; Beeler v. Young, 1 Bibb (Ky.) 519; Grace v. Hale, 2 Humph. (Tenn.) 27, 36 Am. Dec. 296; McKanna v. Merry, 61 Ill. 177.

97 Ryder v. Wombwell, L. R. 3 Exch. 93, L. R. 4 Exch. 32. See, also, Peters v. Fleming, 6 Mees. & W. 42; Wharton v. Mackenzie, 5 Q. B. 606; Davis v. Caldwell, 12 Cush. (Mass.) 512, per Shaw, C J.; Johnson v. Lines, 6 Watts & S. (Pa.) 80, 40 Am. Dec. 542; Mohney v. Evans, 51 Pa. 80.

burden of proving that the articles were necessaries is on the plaintiff."

The obligation of the infant to pay for necessaries being quasi contractual, he is liable without an express contract." And, although he agrees to pay a stipulated price, the amount for which he can be held liable is not the agreed price, but the reasonable value of the goods.100 Even if he gives his note in payment, the seller can recover thereon no more than what the goods were worth.101

In some states, where a father fails to support his infant child, the child has a right upon his father's credit to supply · himself with necessaries; but it is very generally held that a father is not liable for necessaries supplied to the child without his authority.102

CAPACITY OF LUNATICS AND DRUNKEN MEN.

9. A contract of sale or of purchase by a lunatic or drunken man, or other person non compos mentis, is voidable at his option, if at the time of making the contract he was incapable of understanding its effect.

EXCEPTION-In most jurisdictions the sale or purchase is not voidable if the other party did not know, or have reasonable cause to know, the condition of the lunatic or drunken mau, and if the contract has been so far executed that the other party cannot be restored to his former position.

98 Thrall v. Wright, 38 Vt. 494; Wood v. Losey, 50 Mich. 475, 15 N. W. 557; Nicholson v. Wilborn, 13 Ga. 467, 475.

99 Trainer v. Trumbull, 141 Mass. 530, 6 N. E. 761; Gregory v. Lee, 64 Conn. 407, 30 Atl. 53, 25 L. R. A. 618.

100 Stone v. Dennison, 13 Pick. (Mass.) 1, 23 Am. Dec. 654; Vent v. Osgood, 19 Pick. (Mass.) 572, 575; Locke v. Smith, 41 N. H. 346; Beeler v. Young, 1 Bibb (Ky.) 519; Bouchell v. Clary, 3 Brev. (S. C.) 194; Trainer v. Trumbull, supra; Gregory v. Lee, supra. 101 Earle v. Reed, 10 Metc. (Mass.) 387; Bradley v. Pratt, 23 Vt. 378; Guthrie v. Morris, 22 Ark. 411. Some cases hold the note void. Swasey v. Vanderheyden's Adm'r, 10 Johns. (N. Y.) 33; McMinn v. Richmonds, 6 Yerg. (Tenn.) 9; Ayers v. Burns, 87 Ind. 245, 44 Am. Rep. 759. See Byles, Bills (7th Am. Ed.) 61.

102 Tiffany, Ag. 41.

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