of guaranty, and after he became of age wrote a letter asking that an itemized bill be sent to him, it was considered that this did not amount to a ratification such as to make him liable on the guaranty.199

§ 304. Disaffirmance or Rescission.-No particular manner of disaffirmance by an infant of a contract made by him is necessary; any act which clearly shows his renunciation of the contract and his intention not to be bound by it is sufficient to avoid it.200 This result may be accomplished by his giving notice to the other party to the contract that he considers it void, with an offer to return the consideration received.20 An infant's deed of land may be disaffirmed not only by an express notice to that effect, followed by resumption of the possession, but also by his executing a deed of the same property to a different grantee after attaining his majority. But whether or not the making of such second conveyance without re-entry, the grantor not being in actual possession, will effectually avoid the first deed, depends upon the local law.202 So where an infant has given a chattel mortgage, an unconditional sale and delivery of the property to a third person is such an act as will avoid the mortgage.203 But where an infant gives a mortgage on his lands, and, after reaching his majority, executes a quit-claim deed of the same land to a third person, the deed will not be taken as a disaffirmance of the mortgage, since the two conveyances are not inconsistent with each other, the deed being understood as conveying

199 H. C. Miner Lithographing Co. v. Santley (Sup.) 150 N. Y. Supp. 71.

200 Barnes v. Barnes, 50 Conn. 572; Pyne v. Wood, 145 Mass. 558, 14 N. E. 775; Cogley v. Cushman, 16 Minn. 397 (Gil. 354); Heath v. West, 26 N. H. 191; State v. Plaisted, 43 N. H. 413; Skinner v. Maxwell, 66 N. C. 45; Groesbeck v. Bell, 1 Utah, 338.

201 Willis v. Twambly, 13 Mass. 204.

202 Riggs v. Fisk, 64 Ind. 100; Vallandingham v. Johnson, 85 Ky. 288, 3 S. W. 173; Haynes v. Bennett, 53 Mich. 15, 18 N. W. 539; Dawson v. Helmes, 30 Minn. 107, 14 N. W. 462; O'Donohue v. Smith, 130 App. Div. 214, 114 N. Y. Supp. 536; Eagle Fire Ins. Co. v. Lent, 6 Paige (N. Y.) 635; Hoyle v. Stowe, 19 N. C. 320; Cresinger v. Welch, 15 Ohio, 156, 45 Am. Dec. 565; McGill v. Woodward, 3 Brev. (S. C.) 401.

203 Chapin v. Shafer, 49 N. Y. 407.

only the equity of redemption.204 If the contract in question was one by which the infant parted with his property by sale or otherwise, he may repudiate it by repossessing himself of the property, if he can do so without crime or a breach of the peace,205 or he may maintain an action for its conversion, if the return of it to his possession has first been demanded and refused,208 or it is said that the mere institution of an action of replevin will suffice for a disaffirmance of the contract, even though not prosecuted to final judgment. 207 If the contract was one by which the infant acquired property from another, he may disaffirm it by returning the property to the possession of its former owner, or offering to do so, making clear his intention to renounce all interest in it, and demanding the restoration of any consideration he may have given.208 Again, the plea of infancy may be set up in defense to an action upon any contract or obligation which is voidable on that ground, without the necessity of first formally disaffirming or repudiating it; the plea of infancy is in itself an exercise of the election to avoid the contract and a sufficient disaffirmance.2 So also, in many cases the institution of a suit by a minor will be considered as sufficient notice of his intention to disaffirm a contract and also as the equivalent of a more formal disaffirmance. Thus, by bringing an action to recover back money paid on a contract of sale, an infant elects to rescind the contract.210 And if an infant has been in the employment of another under an agreement to render certain services for a fixed compensation, his act in suing for the value of his services on a quantum meruit is

209

204 Singer Mfg. Co. v. Lamb, 81 Mo. 221.

205 Utz v. Commonwealth, 3 Ky. Law Rep. 88. 206 Cogley v. Cushman, 16 Minn. 397 (Gil. 354). 207 Stotts v. Leonhard, 40 Mo. App. 336.

208 Pyne v. Wood, 145 Mass. 558, 14 N. E. 775; McCarthy v. Henderson, 138 Mass. 310; Edgerton v. Wolf, 6 Gray (Mass.) 453; Hoyt v. Wilkinson, 57 Vt. 404.

209 Buzzell v. Bennett, 2 Cal. 101; Pakas v. Racy, 13 Daly (N. Y.) 227; 76 S. C. 561, 57 S. E. 630.

King v. Barbour, 70 Ind. 35;
Exchange Bank v. McMillan,

210 Stack v. Cavanaugh, 67 N. H. 149, 30 Atl. 350. See Gray v. Lessington, 15 N. Y. Super. Ct. 257; Carmody v. Patchell, 42 App. D. C. 426.

a repudiation of the contract.211 So if an infant has a claim. against another for damages for personal injuries, and is induced to execute a release, it is voidable on account of his minority, and if he brings an action for the damages, it is a sufficient disaffirmance of the release.212 So also, in a leading case on this subject, where the plaintiffs sued to recover land, and alleged in their complaint that an award under which defendants claimed title, and to which the plaintiffs were parties, being then infants, was rendered in a collusive and fraudulent suit and was void, it was held that this constituted a sufficient disaffirmance of the arbitration and award.218 It also appears to be the rule, though the point is not free from doubt, that an infant may effect the rescission of a contract, which is voidable at his option, through the intervention of an agent appointed by him for that purpose.214

§ 305. Who may Rescind or Avoid.—Infancy is a personal privilege, of which no one can take advantage but the infant himself.215 The only apparent exceptions to this rule are found in the case where the minor dies after the transaction in question and before attaining his majority. In this event, his executor or administrator may avoid or repudiate the transaction just as the infant might have done had he lived,216 and also it seems that the same privilege is accorded to his privies in blood, who would be entitled to

211 Fisher v. Kissinger, 27 Ohio Cir. Ct. R. 13.

212 Born v. Chicago City Ry. Co., 159 Ill. App. 585; St. Louis, I. M. & S. Ry. Co. v. Higgins, 44 Ark. 293; Arizona Eastern R. Co. v. Carillo (Ariz.) 149 Pac. 313.

213 Millsaps v. Estes, 137 N. C. 535, 50 S. E. 227, 70 L. R. A. 170, 107 Am. St. Rep. 496.

214 Towle v. Dresser, 73 Me. 252.

215 Oliver v. Houdlet, 13 Mass. 237, 7 Am. Dec. 134; Worcester v. Eaton, 13 Mass. 371, 7 Am. Dec. 155; Nightingale v. Withington, 15 Mass. 272, 8 Am. Dec. 101; Hill v. Taylor, 125 Mo. 331, 28 S. W. 599; Voorhees v. Wait, 15 N. J. Law, 343; Van Bramer v. Cooper, 2 Johns. (N. Y.) 279; Beardsley v. Hotchkiss, 96 N. Y. 201; Brown v. Caldwell, 10 Serg. & R. (Pa.) 114, 13 Am. Dec. 660; Love v. Dobson, 5 Wkly. Notes Cas. (Pa.) 359; Rose v. Daniel, 3 Brev. (S. C.) 438; Marlin v. Kosmyroski (Tex. Civ. App.) 27 S. W. 1042; Putnam v. Hill, 38 Vt. 85.

216 Jefford's Adm'r v. Ringgold, 6 Ala. 544; Martin v. Mayo, 10 Mass. 137, 6 Am. Dec. 103; Parsons v. Hill, 8 Mo. 135; Frazier v.

the estate upon the avoidance of the contract, but not to those who are privies in estate only,217 or at least, as to the latter, it is held that persons in privity of estate with an infant cannot avail themselves of his privilege of infancy for the mere purpose of setting up irregularities of which the infant has not complained.218 In pursuance of the general rule, it is held that the maker of a note cannot defend an action brought by an indorsee on the ground that the payee was an infant,219 and an adult indorser of a note cannot release himself from liability on the plea that the maker of the note was an infant.220 So, where one sells goods to a minor, retaining title until payment, and the infant sells them to a third person, an action of trover against the latter cannot be defended on the ground of the infancy of the original buyer.221 In an action of assumpsit on a promise to pay the debt of another, the infancy of the debtor is no defense,222 and the infancy of a principal contractor, though set up by the infant and available in his own defense, will not protect his sureties. 223 So, an agreement by which an infant, in consideration of cash furnished him, assigns his wages to become due under an existing contract cannot be avoided by his creditors.224 And the privilege of infancy cannot be set up by a purchaser at a sale under an execution to defeat prior transactions of the judgment debtor.225 Further, where one of the joint parties to a contract is an infant, the fact that he may and does avoid the transaction so far as concerns himself by pleading his infancy does not

Massey, 14 Ind. 382; Lester v. Frazer, 2 Hill Eq. (S. C.) 529; Harris v. Musgrove, 59 Tex. 401; Counts v. Bates, Harp. (S. C.) 464.

217 Bozeman v. Browning, 31 Ark. 364; Nelson v. Eaton, 1 Redf. Sur. (N. Y.) 498; Gillenwaters v. Campbell, 142 Ind. 529, 41 N. E. 1041; Levering v. Heighe, 2 Md. Ch. 81.

218 Harris v. Ross, 112 Ind. 314, 13 N. E. 873.

219 Garner v. Cook, 30 Ind. 331; Dulty v. Brownfield, 1 Pa. 497.

220 Parker v. Baker, 1 Clarke Ch. (N. Y.) 136.

221 Elder v. Woodruff Hardware & Mfg. Co., 9 Ga. App. 484, 71 S. E. 806; Holmes v. Rice, 45 Mich. 142, 7 N. W. 772.

222 Hesser v. Steiner, 5 Watts & S. (Pa.) 476. 223 Parker v. Baker, 1 Clarke Ch. (N. Y.) 136.

224 McCarty v. Murray, 3 Gray (Mass.) 578. 225 Alsworth v. Cordtz, 31 Miss. 32.

in any way affect the liability of the others.226 So an agreement to arbitrate a dispute as to the interest of a deceased partner in a firm, entered into between his widow and the surviving partner, cannot be repudiated by the latter because it does not bind the decedent's minor children.227 And in an action to recover personal property given by the plaintiff in payment for a machine, on the ground that the plaintiff was a minor at the time the contract was made, the contract will not be avoided where it appears that the minor was not acting on his own behalf, but as agent for his father.228

§ 306. Same; Adult Contracting with Infant is Bound. An adult who enters into a contract with an infant does so at his own risk and remains bound by the contract unless the infant elects to disaffirm it. The privilege of rescission is with the infant alone, and if he chooses to abide by the contract, the other party cannot allege the minority of his opponent as a ground for his own refusal to perform or to escape liability on his own part.229 Thus, in an illustrative case, it appeared that the plaintiff, in pursuance of his contract to convey, delivered to defendant a deed from the owner of the property, who was a minor. In an action on the contract, the defendant set up as a defense that he feared that the minor would disaffirm the contract on coming of age, but he did not claim to have been misled, or that he was ignorant of the true state of the title at the time of the purchase. It was held that the defense was insufficient, the minority of the vendor being no ground for a rescission of the contract at the instance of the vendee.230 On the same principle, liability on a policy of insurance on the

226 Barlow v. Wiley, 3 A. K. Marsh. (Ky.) 457; Blake v. Livingston County Sup'rs, 61 Barb. (N. Y.) 149; Arnous v. Lesassier, 10 La. 592, 29 Am. Dec. 470.

227 Chambers v. Ker, 6 Tex. Civ. App. 373, 24 S. W. 1118. 228 Shaffer v. Kennington, 61 Ill. App. 59.

229 Smoot v. Ryan, 187 Ala. 396, 65 South. 828; Chapman v. Duffy, 20 Colo. App. 471, 79 Pac. 746; Lafollett v. Kyle, 51 Ind. 446; Anderson's Adm'r v. Birdsall's Adm'x, 19 La. 441; Reichard v. Izer, 95 Md. 451, 52 Atl. 592; Widrig v. Taggart, 51 Mich. 103, 16 N. W. 251; Stringfellow v. Early, 15 Tex. Civ. App. 597, 40 S. W. 871.

230 Dentler v. O'Brien, 56 Ark. 49, 19 S. W. 111.