Headnote
Where an infant took the note of a third person in payment for work done, and retained it for eight months after he came of age, and then offered to return it and demanded payment for his work, it was held, in an action for the work and labor performed by him, that the retaining of the note for such a length of time was a ratification of the contract made during infancy, especially when, in the mean time, the maker of the note had become insolvent, the debt lost, and the offer to return made on the heel of that event.This was an action of assumpsit, tried at the Oneida circuit in October, 1831, before the Hon. Nathan Williams, one of the circuit judges.
The plaintiff declared for work, labor and services. It appeared that the work declared for had been performed, and that the plaintiff had agreed to do it and to receive payment in goods out of the defendant’s store, and in a promissory note made by Loring Delano, the plaintiff's brother. The work was done in the fall of 1829, and the defendant paid the plaintiff in goods and in the note of Loring Delano, which was a note for $45,41, with interest, bearing date 1st June, 1828, (no time of payment specified,) which the defendant endorsed to the plaintiff without recourse over. All this took place before the plaintiff attained the age of twenty-one ; he came of age on the 10th May, 1830. In the early part of January, 1831, the plaintiff tendered the note to the defendant and demanded payment for his work ; the defendant denied that he owed the plaintiff any thing, and refused to take the note. It appeared that Loring Delano was good for the amount of the note until within 8 or 12 months before the trial of the cause , this suit was commenced the 15th January, 1831. The judge charged the jury that the contract of the plaintiff was not void, but voidable only, and that a voidable contract might be affirmed without any positive act of affirmance ; that-the only question for them to determine was whether the plaintiff had, within a reasonable time after he came of age, ex-. pressed his dissent to the *contract by offering to return the note; and if they should be of opinion that he did not offer to return the note within a reasonable time after he came of age, they would find a verdict for the defendant. To this charge the plaintiff excepted. The jury found for the defendant. The plaintiff moves for a new trial.
O. B. Matteson, for plaintiff.
Mann & Wager, for defendant.
By the Court,
In Goodsell v. Myers, 3 Wendell, 479, it was decided that though the note of an infant was not void and only voidable, yet that, to charge a party upon a note given during infancy, there must be an express promise to the party in interest or his agent, or such an admission of an existing liability after the infant arrived of age, that a promise might be inferred. In that case, the party seeking to qnforce the note was required to show affirmatively a confirmation of the voidable act. There the infant stood on the defensive. Here he is the actor, and is bound to show a disaffirmance of the contract, by returning the note before he can call upon the defendant for payment for the work done, in satisfaction of which the note was received during infancy. It may be questionable whether, within the principle of the case of M’Coy v. Huffman, 8 Wendell, 84, the plaintiff can recover at all for the work and labor performed by him, it having been performed under a special agreement, which has been executed. We do not, however, put the case upon that ground. The purchase by an infant of real estate is voidable, but it vests in him the freehold until he disagrees to it, and the continuance in possession after