Savage v. Lichlyter

BatteE, J. 1. Inability of infant on executory contract. First. There is a difference between an executory and an executed contract of an infant. In the latter case the contract is binding until it is avoided. In the former, it is without binding force until it is confirmed. If an infant is sued on his executory contract, before or after becoming of age, if he has not confirmed it since his majority, the infancy is a perfect defense. Edgerly v. Shaw, 25 N. H. 514; Tobey v. Wood, 123 Mass. 88; Tyler v. Fleming (Mich.), 35 N. W. Rep. 902; Bishop on Contracts, sec. 937; 1 Wharton on Contracts, sec. 50; Hale v. Gerrish, 8 N. H. 374; Fetrow v. Wiseman, 40 Ind. 148. 2. Divisibility of contract. The stipulations made by the infant in this case, though connected and forming parts of the same transaction, were virtually divided by the parties into two contracts, one of which was executed, and the other executory. His right to avoid the latter was not affected by the force, effect or existence of the former. 1 Wharton on Contracts, secs. 46, 114. The first instruction asked for by the plaintiff was properly refused by the court. Second. The seventh instruction asked for by appellant is not mentioned or referred to in the motion for a new trial, if the abstract of appellant be correct, and was, therefore, waived. Third. The objections of the appellant to the instructions given at the instance of the appellees are not insisted on in this court, and, we conclude, have been abandoned. Fourth. As the evidence is not set forth in the abstracts and briefs of the parties, we will not consider it, under the rules of this court. Judgment affirmed.