Everson v. Carpenter — 17 Wend. 419

Majority

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Everson, survivor, &c. vs. Carpenter.

Headnote

The note of an infant is merely voidable and not void, and a promise to pay, made by him after lie attains his age, renders the note valid,^[1]

If the promise be conditional, performance or the happening of the condition, must be affirmatively shown to sustain an action.

A promise to pay as soon as he could, is conditional, and unavailing without proof of ability.

To authorize proof of previous acts or declarations of a witness for the purpose of invalidating his testimony, the witness must, previous to the introduction of such evidence, ba examined to the matter.

This was an action of assumpsit, tried at the New York circuit, in February, 1836, before the Hon. Ogden Edwards, one of the circuit judges.

The suit was brought for the recovery of two promissory notes, bearing date 12th January, 1832; one for $100, payable in 30 days, and the other for $146T6, payable in 60 days. After the plaintiff rested, it [420] was proved by the father and mother of the defendant, that he was born on the 18th February, 1811, and "consequently, that at the date of the notes he was an infant. To rebut this testimony, the plaintiff produced an indenture of apprenticeship, whereby the defendant was bound an apprentice to learn the trade of a shoemaker, executed on the 12th July, 1826, wherein his age was stated to be 17 years, 2 months and 8 days, and whereby he was bound to serve as an apprentice for the term of 3 years, 9 months and 22 days. The indenture was executed by the defendant, his father and the master to whom he was bound, in the presence of a police magistrate, who testified that he had no doubt that the age was inserted from information obtained from the father. The master also testified, that both the defendant and his

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father, at the time of the execution of the indenture, represented the defendant’s age to be as inserted in the indenture. Previous to the introduction of the indenture, the inquiry was made of the father of the defendant, whether he had executed such an instrument, and as to the declarations then made by him in respect to the age of his son. He stated that only the time specified was inserted, because the defendant had previously acquired some knowledge of the trade. The plaintiff also proved, that after the notes became due,, the defendant, on being called upon for payment, told the person who presented the notes, “ that he could not pay them, but would do so when he could; that he had no means at that time; ” that he frequently made similar promises; that on the 26th March, 1832, the defendant paid $20'87! cents, which was endorsed on one of the notes, and that at the time of making such payment he promised to pay the notes “ as quick as he could.” The judge charged the jury that the note of an infant was not void, but voidable merely; that the notes in question were valid, if the defendant, after he came of age and before the commencement of the suit, had made'an express and unconditional promise to pay them, and that in such case he was liable, whether he was or was not at the time apprized of his legal [421] rights. The jury found for the plaintiff for the amount of the notes and interest. The defendant’s counsel having excepted to the admission of the indenture in evidence, and also to the charge of the judge, moved for a new trial.

G. Wilson, for the defendant.

D. Graham, jr. for the plaintiff.

By the Court,

According to the concurrent testimony of both his father and mother, the defendant would not have been of age till a few days after the date of the notes. But taking the age mentioned in the indenture, and as then stated by both the father and defendant himself, he had been of age some time before.

There can not be a doubt that the indenture and the statement then made by the father, were both admissible as affecting his credibility on the particular point of the defendant’s age; and it was introduced with the proper preliminary question to the witness, whether he had made the indenture and the representation about to be imputed to him. He answered with such explanations as occurred to him. Here was all the precaution required in this kind of examination by the Queen’s case and others (1 Phil. Ev. 29, 47th ed. 2 Brod. & Bing. 286, 315; Angus v. Smith, 1 Mood. & Malks. 473, 4); and the jury had a right to regard him as utterly discredited. To this was added the defendant’s own admission at the time of the execution of the indenture. True, his mother, who was eminently qualified to speak to his age, concurred with the father as he had fixed the age on the trial. But had the jury disregarded both, on the question being fairly left to them, we can hardly say that we should have been bound to interfere as on a finding against the weight of evidence. The learned judge, however, seems to have assumed that the want of age was well proved, and to have drawn the attention of the jury to the single question, whether a subsequent promise had been established. '

I pass over the charge, so far as it respected the want of knowledge to the infant of his legal rights, because nothing apppears that he was igno[422] rant of those rights either in fact or in law.

The judge was clearly correct in charging, that the note was merely voidable and not void, and that, therefore, it could be made available by a new promise. The promise, however, should either be absolute, or if conditional, the performance or happening of the condition, should be proved affirmatively by the plaintiff. In this case, I can perceive no evidence that the defendant did more than promise to pay on his becoming able to do so-; nor is any thing more insisted on. The plaintiff’s counsel thinks the jury

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were warranted to draw the inference of ability from the fact of the defendant having a sign of business over his door when the notes were first demanded. For aught'that appears, however, it was but a mere sign, and even that was shortly afterwards taken down. Such a circumstance is too slight to raise a question for the jury. Yet this seems to have been the only question submitted to them. We think it should rather have been withdrawn, and their attention turned entirely to the fact of infancy at the time when the notes were executed. Therefore, there should be a new trial, the costs to abide the event.