Fant v. Cathcart

COLLIER, C. J. It was clearly competent to permit the plaintiff to adduce other testimony, after he had announced that his evidence was closed. The fact that the defendant tendered a demurrer to the evidence can make no difference. It has been frequently held, that the Court, in its discretion, may permit either party to produce additional proof, even after a cause has been argued, and the.jury charged, and we can see nothing so potent in a demurrer as to take from the Court such a discretion. The question then is, not, whether or when a party should be compelled to join in a demurrer which embraces all the evidence he proposes to give, but whether, if from inadvertence or other cause he has declared the intention neither to give or adduce more proof, the Court may not permit a change of purpose, and allow the introduction of other testimony. Upon this point, we can’t doubt the correctness of the ruling of the Circuit Court. ■ In Roof v. Stafford, 7 Cow. Rep. 179, it was said to be well settled, that the contracts of an infant, not only such as take effect by his actual delivery of the subject matter (as a feoffment with livery, or a sale and manual delivery of goods ;) but all his deeds, whether at common law or under the statute of uses, whether relating to real or personal property, are voidable merely. [See also 5 Cow. Rep. 475; 1 N. Hamp. Rep. 74; 2 Id. 51; 1 N. & McC. Rep. 1; 11 Johns. Rep. 539; 3 Burr. Rep. 1794.] In Kline v. Bebee, 6 Conn. Rep. 494, the Court said that there was a contradiction in the books in respect to the line of discrimination between those acts of an infant which require affirmance to render them valid, or disaffirmance to avoid their operation. But they generally agree that whenever the act done may be beneficial to the infant, it shall not be deemed void, but voidable merely. This rule, it is added, is highly reasonable, ior the inter [730] est of the infant, and sanctioned by many judicial decisions. [See 3 G. & Johns. Rep. 103; 2 N. Hamp. Rep. 456.] That an infant may affirm a voidable contract, made during his minority, is a proposition too well settled to be now controverted. This may be done by express ratification; in some cases by the performance of an act from which an affirmance may be reasonably implied ; and in others the omission to disaf-firm a contract in a reasonable .time after attaining majority, has been held sufficient evidence of a ratification. These several modes of affirmance are not alike applicable to every description; but upon this point it is needless to be more specific, than to say, that a contract, such as that now under consideration, may be confirmed by a promise of payment. [6 Conn. Rep. 505; 4 Pick. Rep. 48; 11 Sergt. & R. Rep. 305; 4 McC. Rep. 241; 14 Johns. Rep. 124; 1 Pick. Rep. 221; 6 Greenl. Rep. 89; 2 South. Rep. 460; 1 Strange’s Rep. 690; 1 Atk. Rep. 489; 4 Camp. Rep. 164.] In Reed v. Batchelder, [1 Metc. Rep. 559,] it was decided that a negotiable note made by an infant, is voidable, and not void; and if after coming of age, he promise the payee that it shall be paid, the payee may negotiate it, and the holder may maintain an action in his own name against the maker. So it has been adjudged that where a single bill was given by an infant for necessaries, who after he became of age promised to pay the amount, the action must be brought on the specialty, which was a higher security than the parol promise, and validated by it. [Bull. N. P. 155.] But it was held that as the bond of an infant, with a penalty, was void, it did not merge the simple contract debt; and the action must be founded upon the new promise, and not on the bond. [3 M. & S. Rep. 477; 2 B. & C. Rep. 824.] It is laid down by McPherson, in his Treatise on Infants, p. 498, that although an infant cannot bind himself in an obligation, or other writing, with a penalty, even for the payment of necessaries, yet an obligation from him in the precise sum, disbursed, was good, and in such case, judgment was given for the plaintiff in debt, on a bill single. [See 1 Lev. Rep. 86; 1 Camp. Rep. 552, note.] So it is said, that all deeds which are merely voidable, may be confirmed at full age. [McPherson on Inf. 486-7.] This view of the law may suffice to show, that the writing de [731] clared on, is not void, but voidable only, (if not for necessaries,) that tho defendant might ratify it after he became of full age, and that if ratified, the action thereon is maintainable. The replication to the second plea, was, in legal effect, an ad-imission that the defendant was under twenty-one years of age, when he executed the writing in question, and devolved upon the plaintiff the onus of proving a promise to pay it after he had attained his majority. Evidence was adduced to this point in the deposition excepted to; whether it was sufficient or not, is a question not now before us ; it was certainly pertinent, and properly received, and if the defendant, had desired, he could have prayed the instructions of the Court upon it. It was not necessary for the plaintiff to show that the specialty was given for necessaries sold to the defendant; wes have seen that it was merely voidable at the election of the defendant, and when he acquired capacity to contract, might be affirmed by his parol promise. The issue then being upon the fact of the promise alone, the testimony of Elder, excgpt as it tended to establish it, was unnecessary and superfluous. Whether the answers of the witness would be evidence in a case that required such proof, it is needless to inquire, since in the case before us, it could not have misled the jury; at least, there is nothing in the record that wax-rants such an inference. The conclusion is, that the judgment is affii’med.