Lunatics.

The general rule of the common law is that the contract of a lunatic or other person non compos mentis, like that of an infant, is not void, but is voidable at his option.10 Thus, it may be ratified or disaffirmed by the lunatic on recovery of his sanity,10 or by his guardian or other representative,105 but not by the other party.108

The principal difference between the contract of a lunatic and that of an infant is that if the other party did not know, or have reasonable cause 107 to know, of the lunatic's condition of. mind, and acted in good faith, and the contract has been so far executed that the parties cannot be placed in statu quo, it cannot be avoided. The leading case on this point is Molton v. Camroux,108 the principle of which has generally, though not uni

103 Molton v. Camroux, 2 Exch. 487, 4 Exch. 17; Matthews v. Baxter, L. R. 8 Exch. 132; Seaver v. Phelps, 11 Pick. (Mass.) 304, 22 Am. Dec. 372; Carrier v. Sears, 4 Allen (Mass.) 336, 81 Am. Dec. 707; Chew v. Bank of Baltimore, 14 Md. 299; Ingraham v. Baldwin, 9 N. Y. 45; Pol. Cont. 91; Bish. Cont. 618; Clark, Cont. (2d Ed.) 178, 2 Kent, Comm. 451; Thorpe v. Hanscom, 64 Minn. 201, 66 N. W. 1; Creekmore v. Baxter, 121 N. C. 31, 27 S. E. 994; Etna Life Ins. Co. v. Sellers, 154 Ind. 370, 56 N. E. 97, 77 Am. St. Rep. 481. But see Dexter v. Hall, 15 Wall. (U. S.) 9, 21 L. Ed. 73; Parker v. Marco (C. C.) 76 Fed. 510.

104 Allis v. Billings, 6 Metc. (Mass.) 415, 39 Am. Dec. 744; Arnold v. Richmond Iron Works, 1 Gray, 434; Gibson v. Soper, 6 Gray (Mass.) 279, 66 Am. Dec. 414; Turner v. Rusk, 53 Md. 65.

105 McClain v. Davis, 77 Ind. 419; Halley v. Troester, 72 Mo. 73; Moore v. Hershey, 90 Pa. 196; Flint v. Valpey, 130 Mass. 385.

106 Allen v. Berryhill, 27 Iowa, 534, 1 Am. Rep. 309.

107 Beavan v. McDonnell, 10 Exch. 184; Lincoln v. Buckmaster, 32 Vt. 652; Matthiessen & Weichers Refining Co. v. McMahon's Adm'r, 38 N. J. Law, 536, 544.

108 2 Exch. 487, 4 Exch. 17, Ewell, Lead. Cas. 614. See, also, Beavan v. McDonnell, 9 Exch, 309, 10 Exch. 184; Elliot v. Ince, 7 De Gex, M. & G. 475, 487; Drew v. Nunn, 4 Q. B. Div. 661; Niell v. Morley, 9 Ves. 478, Ewell, Lead. Cas. 628.

In Molton v. Camroux it was said: "The modern cases show that when the state of mind was unknown to the other contracting party, and no advantage was taken of the lunatic, the defense cannot prevail, especially where the contract is not merely executory, but executed in whole or in part, and the parties cannot be restored to their original position." The distinction between executory and executed contracts, however, appears to have been repudiated in

versally, been followed in this country.10 This has been called a decision of necessity, as a contrary doctrine would render all ordinary dealings between man and man unsafe.110 If, however, the lunatic restores, or offers to restore, the consideration which he has received, the necessity ceases, and he may avoid the contract.111 The contractual capacity of a lunatic or insane person under guardianship depends upon statute, and differs in different states.1 112

England, where the more recent rule appears to be that the contract of a lunatic is binding unless the other party knew of his condition. Imperial Loan Co. v. Stone, (1892) 1 Q. B. 599. See Anson, Cont. (8th Ed.) 120.

109 Young v. Stevens, 48 N. H. 133, 2 Am. Rep. 202, 97 Am. Dec. 592; Beals v. See, 10 Pa. 56, 49 Am. Dec. 573; Lancaster County Nat. Bank v. Moore, 78 Pa. 407, 21 Am. Rep. 24; Mutual Life Ins Co. v. Hunt, 14 Hun, 169, 79 N. Y. 541; Ballard v. McKenna, 4 Rich. Eq. (S. C.) 358; Matthiessen & Weichers Refining Co. v. McMahon's Adm'r, 38 N. J. Law, 536; Wilder v. Weakley, 34 Ind. 181; Fay v. Burditt, 81 Ind. 433, 42 Am. Rep. 142; Northwestern Mut. Fire Ins. Co. v. Blankenship, 94 Ind. 535, 48 Am. Rep. 185; Abbott v. Creal, 56 Iowa, 175, 9 N. W. 115; Alexander v. Haskins, 68 Iowa, 73, 25 N. W. 935; Rusk v. Fenton, 14 Bush (Ky.) 490, 29 Am. Rep. 413; Riggan v. Green, 80 N. C. 236, 30 Am. Rep. 77; Burnham v. Kidwell, 113 Ill. 425; Gribben v. Maxwell, 34 Kan. 8, 7 Pac. 584, 55 Am. Rep. 233; Leavitt v. Files, 38 Kan. 26, 15 Pac. 891; Schaps v. Lehner, 54 Minn. 208, 55 N. W. 911; Youn v. Lamont, 56 Minn. 216, 57 N. W. 478; Harrison v. Otley, 101 Iowa, 652, 70 N. W. 724; Flach v. Gottschalk Co., 88 Md. 368, 41 Atl. 908, 42 L. R. A. 745, 71 Am. St. Rep. 418; McKenzie v. Donnell, 151 Mo. 431, 52 S. W. 214. The leading case against this doctrine is Seaver v. Phelps, 11 Pick. (Mass.) 304, 22 Am. Dec. 372; Ewell, Lead. Cas. 610. See, also, Gibson v. Soper, 6 Gray (Mass.) 279, 66 Am. Dec. 414; Brigham v. Fayerweather, 144 Mass. 52, 10 N. E. 735; Hovey v. Hobson, 53 Me. 451, 89 Am. Dec. 705; Edwards v. Davenport (C. C.) 20 Fed. 756; Wager v. Wagoner, 53 Neb. 511, 73 N. W. 937. In Crawford v. Scovell, 94 Pa. 48, 39 Am. Rep. 766, Trunkey, J., says: "In this country that rule is not universally extended to sales of personalty, and is not applied to conveyances of real estate." In several of the cases above cited, however, it is applied to conveyances.

110 Elliot v. Ince, 7 De Gex, M. & G. 475, per Lord Cranworth. 111 Boyer v. Berryman, 123 Ind. 451, 24 N. E. 249; Myers v. Knabe, 51 Kan. 720, 33 Pac. 602; Warfield v. Warfield, 76 Iowa, 633. 41 N. W. 383; Eaton v. Eaton, 37 N. J. Law, 108, 18 Am. Rep. 716. 112 Bish. Cont. § 977; Clark, Cont. (2d Ed.) 182.

Drunken Men.

The rules in regard to the contracts of a man who is so intoxicated as not to know what he is doing are the same.113 His contracts are voidable, but not void, and hence may be ratified by him when sober.114

Necessaries.

A lunatic is liable for necessaries furnished him.115 As in the case of an infant, "necessaries" embrace articles suitable to his condition and degree,116 but in the case of a lunatic the term would probably be more liberally construed.117 It seems that a drunken man also is liable for necessaries.118

118 Pol. Cont. 87; Bish. Cont. § 979; Clark, Cont. (2d Ed.) 186. 114 Matthews v. Baxter, L. R. 8 Exch. 132 (pointing out that "void," as used in Gore v. Gibson, 13 Mees. & W. 623, Ewell, Lead. Cas. 734, must be taken to mean "voidable"); Molton v. Camroux, 4 Exch. 17; Carpenter v. Rodgers, 61 Mich. 384, 28 N. W. 156, 1 Am. St. Rep. 595; Broadwater v. Darne, 10 Mo. 277; Bish. Cont. § 985; Clark, Cont. (2d Ed.) 186.

In Hunter v. Tolbard, 47 W. Va. 258, 34 S. E 737, it is held that the contract is void.

115 Baxter v. Earl of Portsmouth, 5 Barn. & C. 170; Bagster v. Same, 7 Dow. & R. 614; Manby v. Scott, 1 Sid. 112; Dane v. Kirkwall, 8 Car. & P. 679; Wentworth v. Tubb. 1 Younge & C. Ch. 171; Williams v. Wentworth, 5 Beav. 325; Nelson v. Duncombe, 9 Beav. 211; Richardson v. Strong, 35 N. C. 106, 55 Am. Dec. 430; La Rue v. Gilkyson, 4 Pa. 375, 45 Am. Dec. 700; Sawyer v. Lufkin, 56 Me. 308; Hallett v. Oakes, 1 Cush. (Mass.) 296; Kendall v. May, 10 Allen (Mass.) 59; Skidmore v. Romaine, 2 Bradf. Sur. (N. Y.) 122; Barnes v. Hathaway, 66 Barb. (N. Y.) 453; Blaisdell v. Holmes, 48 Vt. 492; McCormick v. Littler, 85 Ill. 62, 28 Am. Rep. 610; In re Renz, 79 Mich. 216, 44 N. W. 598; Stannard v. Burns, 63 Vt. 244, 22 Atl. 460. See In re Rhodes, 44 Ch. Div. 94 (showing that the obliga tion is quasi contractual). And see Sales Act, § 2.

116 Baxter v. Earl of Portsmouth, 5 Barn. & C. 170; Bagster v. Same, 7 Dow. & R. 614; La Rue v. Gilkyson, 4 Pa. 375, 45 Am. Dec. 700; Richardson v. Strong, 35 N. C. 106, 55 Am. Dec. 430.

117 Kendall v. May, 10 Allen (Mass.) 59. See in re Persse, 3 Mal94.

loy,

118 Gore v. Gibson, 13 Mees. & W. 623, per Pollock, C. B., and Alderson, B. See, also, Brockway v. Jewell, 52 Ohio St. 187, 39 N. E 470.

CAPACITY OF MARRIED WOMEN.

10. At common law contracts of sale and purchase by married women are in general void; but the capacity of married women to contract has generally been extended by statute.

Although the common-law capacity, or rather incapacity, of a married woman to buy and sell is coextensive with her general capacity or incapacity to contract, and the subject therefore falls rather within the law of contract and of married women than of sale, a few words on the subject may not be out of place. At common law a married woman is incompetent to contract.11 119 A contract with her is not, as in the case of an infant or lunatic, merely voidable, but is void,120 and hence is incapable of ratification upon termination of coverture.121 She cannot, even while living apart from her husband and enjoying a separate maintenance secured by deed, make a valid purchase, on her own account, even of necessaries.1 To the general rule of her incapacity to contract, however, there are several exceptions: (1) When the husband is civiliter mortuus (that is, dead in law, as when he is under sentence of penal servitude, transportation, or banishment), her disability is suspended,123 and, according to some authorities, it is suspended when he is an alien and resident abroad.124 (2) By the custom of the city of London, a married woman might

119 Co. Litt. 112d.

122

120 Anson, Cont. (4th Ed.) 117; Bish. Cont. § 949; Clark, Cont. (2d Ed.) 188; Schouler, Husb. & Wife, §§ 97, 98.

121 Zouch v. Parsons, 3 Burrows, 1794; Clark, Cont. (2d Ed.) 141; Schouler, Husb. & Wife, § 99. There are, however, some authorities which hold that the moral consideration is sufficient to support a promise after termination of coverture. Lee v. Muggeridge, 5 Taunt. 36. Ewell, Lead. Cas. 322, 331; Stew. Husb. & Wife, § 366. 122 Marshall v. Rutton, 8 Term R. 545.

123 Benj. Sales, § 32; Stew. Husb. & Wife, § 358; Clark, Cont. (2d Ed.) 189.

So where
Abbot v.

124 Benj. Sales, §§ 33, 34; Stew. Husb. & Wife, § 358; Gregory v. Paul, 15 Mass. 31; McArthur v. Bloom, 2 Duer (N. Y.) 151. the husband was a citizen and resident in another state. Bayley, 6 Pick. (Mass.) 89.

trade, and for that purpose might make valid contracts.125 (3) In equity, when a married woman has separate property, she may, under certain circumstances, contract so as to render it liable.12 It is to be noticed that the exceptions to the incapacity of married women to contract are not confined, as is the exception in the case of infants and lunatics, simply to purchases of necessaries, but that it extends to their general contractual capacity.

A husband is bound to maintain his wife and to supply her with necessaries, and if he fails in this duty she has the power to pledge his credit for the purpose of supplying herself. The foundation of his liability is the duty of support, and his obligation is one of quasi contract, and is distinct from that which arises when he has conferred authority upon his wife to pledge his credit. 127

The common law in regard to the contractual capacity of married women has been radically changed by legislation in England 128 and in most of the states of this country,1 129 and in many states her disability to contract has been wholly removed. These statutory provisions differ greatly among themselves, and a consideration of the statutory capacity of married women to buy and sell cannot be here attempted.

WHO CAN SELL.

11. As a rule, no person can sell personal property, so as to convey a valid title thereto, unless he be the owner. EXCEPTIONS-(1) In England, but not in the United States, where goods are sold in market overt, according to the usage of the market, the buyer acquires a good title to the goods, provided he buys them in good faith, and without notice of defect of title on the part of the seller, 180

125 Beard v. Webb, 2 Bos. & P. 93; Benj. Sales, § 35.

126 Anson, Cont. (4th Ed.) 118; Clark, Cont. (2d Ed.) 190; Schouler, Husb. & Wife, § 189 et seq.

127 Tiffany, Ag. 40.

128 Benj. Sales, § 37 et seq.

129 Stim. Am. St. Law, § 6482.

180 The Case of Market-Overt, 5 Coke, 83b; Tud. Merc. Cas. (3d