Booby v. McKenney

The opinion of die Court was drawn up by Shf.flest J. This suit is upon a promissory note for one hundred dollars made by the defendants on March 12, 1835, and payable to Lydia Boody, the wife of the plaintiff or her order, on demand. The defendants are a son and the husband of a daughter of Mrs. Boody by a former husband. Mrs. Boody has since deceased. The defendant, McKenney, was an infant, when the note was made, nearly twenty years of age. Mrs. Boody being the owner of a colt and certain cattle, sold them during the year 1834 to her son Henry McKenney, and received his notes in payment. When the present note was made, the defendants had purchased that and some other property of Henry McKenney, and to pay him therefor gave the note in suit and another note for about one hundred and twelve dollars to Mrs. Boody, who at that time cancelled the notes made the year before by Henry McKenney. The property purchased was afterward in the possession of the defendant Staples on a certain farm. The defendant McKen-ney resided in Portland during the year after the purchase. Simeon Strout testified, that “ he did not see the colt in the possession of Joseph until after he returned from Portland; and that one Chick wintered the said colt for the said Joseph [522] the winter after he returned from Portland.” Henry McKen-ney testified, that he did not know that any of the property, ■ which he sold to them, came into the possession of Joseph after the sale “ excepting the colt, which he had the year after he delivered him to the defendants.” It is admitted that Joseph kept the colt after that time till the year 1839, and then sold it for one hundred dollars. The case presented, without the testimony offered and excluded, is that of a minor purchasing property with a person of age, without proof, that he had exercised any acts of ownership over, or had received any benefit from-it, excepting a smaller portion of the property in value, which came to his possession a short time before he was of age; and this he retained for nearly three years after he became of age, and then sold it, and received pay for it. The case shows, that the defendants offered to prove an agreement when the note was made, that it “ was not to be paid, unless called "for during the lifetime of Mrs. Boody.” Parol evidence cannot be received to vary the meaning of a written contract . by adding to its terms, or by extending or limiting them, or by introducing an exception or qualification, or by proving a different contemporaneous agreement. Or by proving that a note payable on demand was to be paid on a contingency only, or not till after the death - of the maker. Rawson v. Walker, 1 Stark. R. 361; Woodbridge v. Spooner, 3 B. & A. 233. This testimony was properly excluded. The' defendants offered also to prove the declarations of the defend- • ant, Staples, made to Henry McKenney, while the colt was at Chick’s, that Joseph had bought the colt of him, and .had given him forty-five dollars for it. And also offered a receipt of Staples to Joseph for forty-five dollars received for the colt. The declarations of Staples- cannot be admitted as part of the res gesta of any sale or other transaction. If any sale were made to Joseph, it does not appear to have been made, or any other business to have been transacted, at that time. They cannot be connected with the receipt, for they do not appear to have been made at the time, when that was m.ade. They were therefore, but the declarations of a party made to a third [523] person and offered in favor of his co-defendant. Receipts, .bills of parcels, and other papers, signed by one party to a suit, and offered by an opposing party, are received, like other contracts, as showing the engagements or. declarations in writing of the opposing party. But they cannot be received, when offered by the maker of them, unless there be proof, that they have been in the hands or.in some way connected with the opposing party; and they are then received as exhibiting his assent, or showing his connexion with the transaction; The receipt, as offered in this case, was but the written declaration or statement of one defendant to his co-defendant. It was not testimony under the sanction of an oath of any transaction between those persons. The case must therefore be decided upon the testimony introduced and already stated. There have been differences of opinion, whether a negotiable promissory note, made by an infant, was void, or voidable. The better opinion is, that such a noté is voidable only at the election of the infant. Goodsell v. Myers, 3 Wend. 479. Many of the apparent differences in the judicial decisions respecting the duties and liabilities of persons, after they become of age, when they would affirm or disaffirm contracts made during their infancy, may be shown to have been appropriate and not in conflict by adverting to the state of facts,-on which the remarks were made. Those remarks may have been well suited to the state of facts and to the point then under consideration, and yet when applied as exhibiting abstract truths, applicable to all such cases, they may appear to be in conflict with other remarks equally appropriate to the cases, in which they were made. To explain some of these apparent differences, alluded to in the arguments, it becomes necessary to state briefly certain conditions, in which a person may be placed, after he becomes of age, in relation to contracts made during his infancy ; and his appropriate conduct and duty, when he would affirm, or disaffirm them. 1. When he has made a conveyance of real estate during infancy, and would affirm or disaffirm it, after he becomes of age. In such case the mere acquiescence for years to dis524 affirm it affords no proof of a ratification. There must be some positive and clear act performed for that purpose. The reason is, that by his silent acquiescence he occasions no injury to other persons, and secures no benefits or new rights to himself. There is nothing to urge him as a duty, towards others to act speedily. Language, appropriate in other cases, requiring him to act within a reasonable time, would become inappropriate here. He may therefore, after years of acquiescence, by an entry or by a conveyance of the estate to another person, disaffirm and avoid the conveyance made during his infancy. Jackson v. Carpenter, 11 Johns. R. 539; Austin v. Patton, 11 S. & R. 311; Tucker v. Moreland, 10 Peters, 58. 2. When during infancy he has purchased real estate or has taken a lease of it subject to the payment of a rent, or has granted a lease of it upon payment of a rent. In such cases it is obvious, when he becomes of age, that he is under a necessity, or that common justice imposes it upon him as a duty, to make his election within a reasonable time. He cannot enjoy the estate after he becomes of age for years, and then disaffirm the purchase and refuse to pay for it, or claim the consideration paid. Or thus enjoy the leased estate, and then avoid payment of the stipulated rent. Or receive rent on the lease granted, and then disaffirm the lease. When he will receive a benefit by silent acquiescence, he must make his t Action within a reasonable time, after he arrives at full age, or the benefits so received will be satisfactory proof of a ratification. Ketsey’s case, Cro. Jac. 320; Evelyn v. Chichester, 3 Burr. 1765; Hubbard v. Cummings, 1 Greenl. 11; Dana v. Coombs, 6 Greenl. 89; Barnaby v. Barnaby, 1 Pick. 221; Kline v. Beebe, 6 Conn. R. 494. In the case of Ben-ham v. Bishop, 9 Conn. R. 330, it appeared, that the defendant and his mother and sisters were in possession and owned land in common, and that defendant, while an infant, made his note to another sister for a conveyance to him of her undivided share of the same estate, and that they continued tp occupy the land in the same manner several years after he [525] became of age ; and it was decided not to amount to a ratification of the note. This case can only be regarded us correctly decided by considering the defendant as having occupied only by virtue of his own previous title as a tenant, in common. 3. When he has during bis infancy sold and delivered personal property. When the contract was executed by his receiving payment, it is obvious, that he can receive no benefit by acquiescence; and it alone does not confirm the contract. When the contract remains unexecuted, and he holds a bill or note taken in payment for the property, if he should collect or receive the money due upon it, or any part of it, that would affirm the contract. Should he disaffirm the contract and reclaim the property, the bill or note would become invalid. He cannot disaffirm it until after he becomes of age. And if he then does it, there are cases, which assert, when the contract has become executed, that ho must restore the consideration received. Badger v. Phinney, 15 Mass R. 363; Roof v. Stafford, 7 Cowen, 179. 4. When he has purchased and received personal property during infancy. When the contract has been executed by a payment of the price, if he would disaffirm it, he should restore the property received. When the contract remains un-executed, the purchase having been made upon credit, he may ovoid the contract by plea daring infancy, or after he becomes of age, before he has affirmed it. It has been asserted in such case, that he should be held to refund the consideration received for the contract avoided. Reeve’s Dom. Rel. 243. He admits, however, that the current of English authorities is otherwise. If he had received property during infancy, and had spent, consumed, wasted, or destroyed it; to require him to restore it, or the value of it, upon avoiding the contract, would be to deprive him of the very protection, which it is the policy of the law to afford him. There might be more ground to contend for the right to reclaim specific articles remaining in his hands unchanged at the time of the avoidance of the contract. When he continues to retain the specific property, or any part of it, after he becomes of full age, it becomes his [526] duty, within a reasonable time, to make his election. If such were not the rule, he might continue to use for years a valuable machine until nearly worn out, and thus derive benefit from it, and yet avoid the contract and refuse to pay for it. And when after a reasonable time he continues to enjoy the use of the property, and then sells it, or any part of it, and receives the money for it, he must be considered as having elected to affirm the contract; and he cannot afterwards avoid payment of the consideration. This, as before shown, is the well settled rule in relation to real estate purchased or leased ; and the principles applied in those decisions appear to be equally applicable here. Such was the decision in Lawson v. Lovejoy, 8 Greenl. 405; Chesire v. Barrett, 4 McCord, 241; Dennison v. Boyd, 1 Dana, 45; Delano v. Blake, 11 Wend. 85. It is contended, that the colt did not constitute a part of the consideration of the note in- this case, because the purchase was made of Henry McKenney, and the note was made payable to Mrs. Boody for the cancellation of the notes of Henry. The testimony proves, that the cattle and colt were the consideration received by the defendants for making the note, although not the consideration, upon which Mrs. Boody became entitled to receive it. It cannot be material, so far as it respects a ratification of the contract by Joseph McKenney, to whom the note was made payable.. Defendants to be defaulted.