State v. Binder

The opinion of the court was delivered by Magie, J,

As it appears that prosecutor interposed the defence of infancy in the trial below, it is obvious that the sole question presented by this certiorari is whether proof of. his letter of February 25th, 1892, avoided that defence.

The contract proved to have been made during prosecutor’s infancy was a voidable contract. Patterson v. Lippincott, 18 Vroom 457 . It was therefore capable of being ratified by him after he attained full age.

In my judgment, it is unnecessary to decide in this case whether a contract made during infancy can be established *376 only by proof of an express promise made after majority, or also by proof justifying the inference of a promise, or of an intent to recognize the binding force of, and to perform, the contract; for such a ratification, established by any such proof, may obviously be qualified by conditions. As the adult may wholly avoid the contract made during infancy, he may avoid it in part or may undertake a conditional performance of it. Chit. Cont., § 47; Thompson v. Lay, 4 Pick. 47 ; Proctor v. Sears, 4 Allen 95 ; Eversen v. Carpenter, 17 Wend. 419 . In this respect, the ratification after majority of an infant’s contract resembles the acknowledgment of a contract barred by the statute of limitations. Parker v. Butterworth, 17 Vroom 244 .

If prosecutor’s letter in any way established a ratification of his voidable contract, it was plainly a qualified ratification, dependent upon his ability to pay the whole or some part of the note, payment of which had been requested.

Under such a ratification, defendant’s right to avoid the defence of infancy could only arise upon further proof that the conditions annexed to the ratification had happened. As there was no proof whatever on this subject, the defence of infancy was an absolute bar to the action, and judgment should have been rendered for prosecutor.

For this reason, the judgment in favor of defendants must be reversed, with costs.