Tobey v. Wood

• Decision Date: 03 July 1877
• Citation: Tobey v. Wood, 123 Mass. 88 (Mass. 1877)
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: Gerard C. Tobey v. Seth Wood & others

123 Mass. 88

Gerard C. Tobey v. Seth Wood & others

Supreme Court of Massachusetts

July 3, 1877

Suffolk.

Judgment for the defendant Humes.

T Weston, Jr., for the plaintiff.

J. Fox for the defendant Humes.

Morton, J. Endicott & Soule, JJ., absent.

OPINION

Morton, J.

This is an action of contract upon two checks, dated respectively December 2, 1872, and January 3, 1873, signed by Seth Wood & Co., and duly presented for payment, and protested for non-payment.

The defendant Humes, the only one of the signers who defends the action, was a member of the firm of Seth Wood & Co., and, when the checks were drawn, was an infant.His promise to pay the checks, therefore, was a voidable contract, and the burden of proof is upon the plaintiff to show that Humes, after he became of age, affirmed and ratified the contract.2 Greenl. Ev. § 367, and cases cited.Reed v. Batchelder, 1 Met. 559.Such ratification may be shown, either by proof of an express promise to pay the debt, made by the infant after he became of age, (which is not claimed in this case,) or by proof of such acts of the infant, after he became of age, as fairly and justly lead to the inference that he intended to ratify the contract and pay the debt.Boody v. McKenney, 23 Me. 517.Proctor v. Sears, 4 Allen 95.Thompson v. Lay, 4 Pick. 48.Peirce v. Tobey, 5 Met. 168.Dublin & Wicklow Railway v. Black, 8 Exch. 181;S. C. 16 Eng. L. & Eq. 558, and note.

The plaintiff contends that the facts in this case justify the finding that the defendant Humes intended to and did ratify his promise to pay these checks.These facts are, that a portion of the goods which formed the consideration of the checks remained unsold up to the time of the dissolution of the firm, which was seven weeks after Humes became of age; that during said seven weeks he drew money for his personal use, from time to time, from the firm; and that, at the dissolution, his partners, the other defendants, agreed with him that they would assume and pay all the debts of the firm.It is also agreed that, at the time Humes became of age, and until after the dissolution, he supposed that these checks were paid.

It has often been held that, if an infant purchases property, and, after he becomes of age, retains specifically the property, and uses or disposes of it, it may be an affirmance of the contract by which he acquired it, and deprive him of the right to avoid.Chandler v. Simmons, 97 Mass. 508, and cases cited.This is upon the ground that he can honestly retain the goods only upon the assumption that the contract by which he acquired them was valid, and therefore his retention and use of them, if unexplained, justly leads to the inference of a promise or undertaking to pay for them, after his incapacity to make contracts is removed.Todd v. Clapp, 118 Mass. 495.

But this rule cannot apply in the present case, because it is not shown that Humes knew that any of the goods, which were the consideration of the checks, remained undisposed of at the time he became of age, and it is shown that he supposed that the checks had been paid.Under these circumstances, there is no foundation for an inference of a promise by him to pay the checks.Smith v. Kelley, 13 Met. 309.

The facts that Humes remained in the firm for seven weeks after he became of age, drawing money from time to time for his personal use, and that when he retired he took an agreement from his partners that they would pay all the debts of the firm, are relied upon by the plaintiff as showing an affirmance of the checks.But we are of opinion that these facts do not afford sufficient proof of such affirmance.In this connection, it must be borne in mind that Humes supposed these checks to have been paid.In the absence of an...