Duncan research files of
"Reports of cases at law, argued and determined in the Court of Appeals and Court of Errors of South Carolina, from November 1855 to May 1856, both inclusive" by J.S.G. Richardson, State Reporter, Vol.IX; ("Richardson's South Carolina Law Reports"), Vol.9, pgs.55 to 60 (California State Law Library, Sacramento, 1/2004)
JOHN R. LITTLE vs. JOHN A. DUNCAN; Court of Appeals of South Carolina, Columbia; 9 Rich. 55; November and December, 1855.
(MAD: Headnotes not included here)
Before MUNRO, J., at Union, Spring term, 1855.
The report of his Honor the presiding Judge is as follows:
"This was a summary process, to recover on a sealed note for seventy-five dollars, dated the 13th April, 1853.
"The consideration of the note was a mule sold by the plaintiff to the defendant. -- The defence was infancy, and payment.
"The defendant's infancy, at the time of the execution of the note, was clearly established by his mother, Mrs. Martha Duncan, who proved that the defendant was born in January, 1833, consequently he was not of age until January, 1854. This witness also stated that the day after the defendant purchased the mule, he let his elder brother, Amos, have it; but whether by sale or gift, she did not know. The mule, she said, was worked on the place where she and her two sons resided, from April to July, when Amos went to Texas.
"In order to sustain the plea of payment -- and this, by the way, was the ground, too, upon which the plaintiff relied for a confirmation of defendant's contract after he had arrived at full age, it was proved, that in the month of December, 1854, about eleven months after the defendant had become of age, he tendered to the plaintiff a watch, valued at seventy dollars in part payment of the note. Out of this transaction, another question arose, as to whether the acceptance of the watch by the plaintiff, was absolute, or merely conditional. In reference to this transaction, Mrs. Duncan stated, that about two months after the delivery of the watch by her son to the plaintiff, the latter came to her residence, during her son's absence, and proposed to her to take up a note which she held against one Wm. Smith, by delivering to her the note in suit, and another note of defendant's, to which, I think, the mother was surety -- at the same time he proposed to return the watch to her, alleging as a reason for so doing, that he could not afford to keep it, at the price the defendant had put on it -- that the witness declined receiving the watch, upon which the plaintiff hung it up on a nail in the house, and left it there, where she saw it several times afterwards, but could give no account of what eventually became of it. Wm. Smith, the individual above referred to, and a witness for the plaintiff, stated, that shortly after the delivery of the watch to the plaintiff, in a conversation with the defendant, in reference to the notes the plaintiff held against him, the latter admitted that the note in suit was a just transaction, and that he had delivered to the plaintiff a watch in part payment; and in reply to an inquiry by the witness, why the note had not been credited with the watch, he stated "that he did not know if the plaintiff would keep it -- that he was to keep the watch at seventy dollars, provided he liked it, and it kept good time."
"On the first question, as to the confirmation of the contract by the defendant, after his attaining the age of majority, I thought the delivery of the watch was conclusive, provided an instrument under seal, executed by an infant, be at all capable of confirmation, about which I confess I entertained considerable doubt -- and on the other ground, it appeared to me equally conclusive, from the defendant's own declaration, that the plaintiff's acceptance of the watch had been only conditional -- and furthermore, although the watch had not been actually returned to the defendant in person, still, from the fact of its having been left hanging up in the house where the defendant resided, in the presence of his mother, who interposed no objections to the plaintiff's leaving it in that situation, and where she saw it upon several occasions afterwards -- and withal from the total absence of any proof as to what eventually became of it, I could draw no other conclusion than that the watch had actually come into the defendant's possession. Taking this view of the testimony, I decreed for the plaintiff the amount of the note, and interest."
The defendant appealed and now moved this Court to reverse the decree, or for a new trial, on the following grounds:
1. Because the plea of infancy was a complete bar to plaintiff's recovery, and his confirmation, if any, was conditional, and upon the ground that plaintiff should keep the watch.
2. Because the confirmation should have been in writing, in an equal degree with the note sued on.
3. Because, at least, the defendant's plea of payment was sufficiently proved, and the decree should have been in his favor on that plea, or he should have been allowed a discount to the value of the watch.
4. Because his Honor erred, it is submitted, in holding that defendant had received the watch from plaintiff, and because the decree is contrary to law and evidence.
DAWKINS, GADBERRY, for appellant.
The opinion of the Court was delivered by
WHITNER, J. The grounds of this appeal have been pressed with much earnestness. The leading questions are decided in the case of Cheshire vs. Barrett, 4 McC. 241, unless a distinction may be taken because this was a note under seal. The first point to be settled is, certainly, whether this was a void contract or voidable only, for, as is quaintly said, "a void thing is incapable of confirmation." 2 Co. Lit. 516, note a.
It is not an easy task to distinguish, after all the learned discussions to be met with in the books, amongst the cases as they arise. Each principle on which to rest the distinction as applicable to a class has been successfully challenged.
From a careful review of the authorities, I do not perceive that the question in any way turns on the fact of whether the contract was under seal or not. It is said, for instance, that an infant cannot bind himself in a bond with a penalty even for necessaries, and yet in the same authority it is laid down that a single bill without a penalty would be good. 3 Coke, 171, 172.
Bingham, in his treatise, furnishes as the true criterion, "that acts which are capable of being legally ratified are voidable only; and acts which are incapable of being legally ratified are absolutely void." Bing. on Inf., 33. C.J. Eyre maintained, "that when the Court can pronounce the contract to be in the infant's prejudice, it is void, and when to his benefit it is good, and when the contract is of an uncertain nature as to benefit or prejudice it is voidable only, at the election of the infant when he arrives at maturity." 2 Henry, Blacks. 511; Keane vs. Boycott.
These distinctions are regarded as founded in solid reason by Story, J., in 1 Mas. Rep. 82, and by Cha. Kent, 2 Com. 236.
In our own court in the case already cited, Johnson, J., with his clear mind could see "little distinction in this respect between contracts entered into by adults and infants. Such as are immoral in their tendency, or against law, or without consideration are void by whomsoever made, and no undertaking based upon them can bind. Those based upon moral, legal and valuable consideration bind adults; the policy of the law permits an infant to avoid them, but if arriving at full age he thinks proper to affirm them, he ought to be bound -- the moral obligation being a sufficient consideration to support the new undertaking." Whatever may have been the distinctions taken in early cases, "the tendency (says Ch. Kent, in his 2 vol. Com. 235) of the modern decisions is in favor of a very liberal extension of the rule, that the acts and contracts of infants should be deemed voidable only and subject to their election when they become of age."
In the application of such principles in the case, 3 Bur. 1794, Touch vs. Parsons, it was held, that an infant's conveyance by lease and release was voidable only; though assailed by subsequent writers, it "has been recognized as law in this country and is not now to be shaken."
Upon this ruling the same authority adds, that the bonds of infants have been held to be voidable only on their election. 1 Johns. Cas. 127. So, too, of deeds, 5 Yer. 41.
What amounts to a confirmation of such a contract as the one now under consideration? It is insisted this may be done only by an instrument equally solemn as the first, and the authority of Coke, Lit. sec. 515, is invoked. But if it be conceded that such a principle applies where an estate is to be confirmed as contradistinguished from a contract, it might not avail in such a case as this.
There are three modes of affirming the voidable contracts of infants; by an express ratification, by acts which reasonably imply an affirmance, and by the omission to disaffirm within a reasonable time. 11 Serg. & Rawle, 305; 6 Con. Rep. 494.
In 1 Bail. 28, a simple declaration was not enough, unless accompanied by some act which recognizes the validity of the contract.
In 11 Hump. 468, it is considered now the settled rule, that in general the deed of an infant is voidable only at his election, and may be affirmed by an express ratification or acts which reasonably imply an affirmance.
In 7 Iredell, an infant was held to pay his note for purchase money of land, his subsequent acts being an affirmance of original contract.
In 16 Ala. Rep. 186, West vs. Penny, I learn from an abstract of the case, it was held, that a verbal affirmance of a contract made during minority renders it valid from date, whether under seal or not, being in its legal effect but a waiver of the defence of infancy. These authorities might be multiplied.
The circumstances set forth in the brief well authorized the Judge in the conclusion, that this defendant had affirmed the contract, and was precluded from his defence of infancy. He admitted that the note was a just transaction, and that he had delivered to plaintiff a watch in part payment. The condition that the watch might be returned if it was found not to keep good time, in no way negatived his admission of the justness of the demand, or the bona fides of the act whereby he set about its satisfaction.
The motion to reverse the decree is dismissed.
O'NEALL, WARDLAW, WITHERS, GLOVER and MUNRO, JJ., concurred.
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