Graves, J.
On the 2d day of January, 1866, and for some time theretofore, the plaintiffs in error Avere doing business as partners in the sale of merchandize at Holly, in this state, [314] and gave their notes in question to the defendants in error for goods purchased of the latter shortly'before the date of the notes. When these notes were given Minock lacked four days of his majority. The firm continued in business as usual, retailing among others some portion of the goods for which the notes were given, until about the 1st of February, 1866, when they sold out the whole stock, including what remained of the bill purchased of defendants in error, and then dissolved. The Circuit Judge found that after Minock attained his majority he recognized the firm, paid some other co-partnership obligations, received his share of the profits and benefits which accrued from the sales in the regular course of business, and participated in the closing sale of the residue of the stock. He also found that Minock, after the notes became due, and which must have been after the dissolution, declared to the attorney for defendants in error, that Hadden ought to pay more than half of the notes, and that if he would do so he, Minock, would pay his share; but the Judge likewise found that Minock after coming of age made no express promise to pay. Upon these facts the Judge determined as matter of law that the notes were not void, but voidable only at the election of Minock, and were ratified by him.
It is objected by plaintiffs in error that the notes were void as against Minock, but if not, that the facts found did not amount to a ratification.
If the contracts of Minock were nullities, there was of course nothing to be validated by any subsequent act or declaration of his, however formal and explicit, and evidence admitted to show a mere ratification was unauthorized, and the ruling that a ratification had been shown was erroneous. It is impossible to reconcile the cases on this subject. All or nearly all of the early authorities, as well as some of the modern ones, support the position taken by counsel for the [315] plaintiffs in error, that executory undertakings like the notes in-question are void, but the tendency of judicial opinion has long been otherwise, and the clear weight of authority in this country is now in favor of holding the mercantile paper of minors voidable at their election, and not absolutely void. The authorities bearing upon the question are mostly collected in the text-books, and are too numerous to justify an attempt at citation.
Much confusion has undoubtedly arisen in respect to the engagements of minors, as well as in many other cases, either from an incautious use of the word “void” and “voidable,” or their reception or application in a loose or inappropriate sense.
The executory contract of an infant, such as a promissory note, is not void in the sense of being a nullity, because it may be confirmed, but it has no binding force until it is confirmed. Being executory, and not binding until confirmed, it is said to be voidable, but as thus applied this word is to be, understood in a sense quite different from that which belongs to it when applied to the executed contract of an infant.
The general rule is that an executed contract is binding until avoided by words or conduct which show that the party refuses longer to be bound by it. But when it is said that the executory contract of an infant is voidable, the idea represented is that the contract is susceptible of confirmation or avoidance by the promisor, though it is not binding until it is ratified.
There can be no ratification without the assent of the person to be charged. And where the liability of the party depends upon his acts done after becoming competent to give a binding assent, the nature and extent of the liability will depend upon what he assents to, as ascertained from his words or relevant circumstances, and he can be held [316] to no other or different engagement than such as he is found to have assented to. The case may show a ratification, or, failing to show that, it may disclose a different and distinct agreement, involving a liability indeed, but a liability quite unlike and remote from that produced by a ratification. When a ratification occurs it excludes all right to disavow the original undertaking, and makes it obligatory as against the defense of infancy. The new matter reaches back and renders the original contract binding from the time it was made, and the first agreement having in its entirety received the assent of the promisor after the ceasing of his disability, is made in all its parts the binding contract of the parties. The minor on coming of age, may, however, fail or decline to assent to a confirmation of the first agreement, but may be willing to make himself liable upon a new express or implied undertaking, based on the original consideration. He may, expressly or by implication, agree to terms which necessarily create a conditional, qualified, or restricted liability, and, in such case,7 the first agreement is not ratified by the second. A new agreement is constituted which is operative only from the time of its creation, and effective according to its nature. If the promise or act of the party after majority amounts to a conditional ratification, instead of a new substantive engagement, the contract made during minority may then be enforced, but not until the condition is fulfilled.
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Graves, J.
On the 2d day of January, 1866, and for some time theretofore, the plaintiffs in error Avere doing business as partners in the sale of merchandize at Holly, in this state, [314] and gave their notes in question to the defendants in error for goods purchased of the latter shortly'before the date of the notes. When these notes were given Minock lacked four days of his majority. The firm continued in business as usual, retailing among others some portion of the goods for which the notes were given, until about the 1st of February, 1866, when they sold out the whole stock, including what remained of the bill purchased of defendants in error, and then dissolved. The Circuit Judge found that after Minock attained his majority he recognized the firm, paid some other co-partnership obligations, received his share of the profits and benefits which accrued from the sales in the regular course of business, and participated in the closing sale of the residue of the stock. He also found that Minock, after the notes became due, and which must have been after the dissolution, declared to the attorney for defendants in error, that Hadden ought to pay more than half of the notes, and that if he would do so he, Minock, would pay his share; but the Judge likewise found that Minock after coming of age made no express promise to pay. Upon these facts the Judge determined as matter of law that the notes were not void, but voidable only at the election of Minock, and were ratified by him.
It is objected by plaintiffs in error that the notes were void as against Minock, but if not, that the facts found did not amount to a ratification.
If the contracts of Minock were nullities, there was of course nothing to be validated by any subsequent act or declaration of his, however formal and explicit, and evidence admitted to show a mere ratification was unauthorized, and the ruling that a ratification had been shown was erroneous. It is impossible to reconcile the cases on this subject. All or nearly all of the early authorities, as well as some of the modern ones, support the position taken by counsel for the [315] plaintiffs in error, that executory undertakings like the notes in-question are void, but the tendency of judicial opinion has long been otherwise, and the clear weight of authority in this country is now in favor of holding the mercantile paper of minors voidable at their election, and not absolutely void. The authorities bearing upon the question are mostly collected in the text-books, and are too numerous to justify an attempt at citation.
Much confusion has undoubtedly arisen in respect to the engagements of minors, as well as in many other cases, either from an incautious use of the word “void” and “voidable,” or their reception or application in a loose or inappropriate sense.
The executory contract of an infant, such as a promissory note, is not void in the sense of being a nullity, because it may be confirmed, but it has no binding force until it is confirmed. Being executory, and not binding until confirmed, it is said to be voidable, but as thus applied this word is to be, understood in a sense quite different from that which belongs to it when applied to the executed contract of an infant.
The general rule is that an executed contract is binding until avoided by words or conduct which show that the party refuses longer to be bound by it. But when it is said that the executory contract of an infant is voidable, the idea represented is that the contract is susceptible of confirmation or avoidance by the promisor, though it is not binding until it is ratified.
There can be no ratification without the assent of the person to be charged. And where the liability of the party depends upon his acts done after becoming competent to give a binding assent, the nature and extent of the liability will depend upon what he assents to, as ascertained from his words or relevant circumstances, and he can be held [316] to no other or different engagement than such as he is found to have assented to. The case may show a ratification, or, failing to show that, it may disclose a different and distinct agreement, involving a liability indeed, but a liability quite unlike and remote from that produced by a ratification. When a ratification occurs it excludes all right to disavow the original undertaking, and makes it obligatory as against the defense of infancy. The new matter reaches back and renders the original contract binding from the time it was made, and the first agreement having in its entirety received the assent of the promisor after the ceasing of his disability, is made in all its parts the binding contract of the parties. The minor on coming of age, may, however, fail or decline to assent to a confirmation of the first agreement, but may be willing to make himself liable upon a new express or implied undertaking, based on the original consideration. He may, expressly or by implication, agree to terms which necessarily create a conditional, qualified, or restricted liability, and, in such case,7 the first agreement is not ratified by the second. A new agreement is constituted which is operative only from the time of its creation, and effective according to its nature. If the promise or act of the party after majority amounts to a conditional ratification, instead of a new substantive engagement, the contract made during minority may then be enforced, but not until the condition is fulfilled.
In the case before us the Court found that Minock made no express promise on coming of age, but when called on for payment by the attorney for defendants in error, which must have been subsequent to the conversion of the goods, and also to the dissolution, he took the position that Hadden ought to pay more than half of the amount called for by the notes, and stated that, if he would do so, he, [317] Minock, would pay his share. When it is considered that Minock expressly took this ground when called on for payment after his majority, and after the goods had been disposed of and the co-partnership closed, and that a ratification of the notes would hare involved a liability on his part to pay the whole sum promised by the notes, it is very evident that he did not intend to bind himself to the undertaking evidenced by the notes. Indeed, these facts import in substance a refusal to be bound by the original agreement, and exclude any implication that he designed to invest it with any obligatory force. The transaction signified that he would not be liable for the whole sum as he would have been on ratification, but would only be liable for something less than half. The other circumstances relied on to raise an inference of ratification, should be considered in connection with the facts last mentioned. These circumstances preceded the express declaration oí Minock, and do not appear to have been countenanced by him with any view to the subject of ratification. Whatever may be their effect as to his purpose to affirm his voidable agreement, they cannot outweigh the evidence of his dissent furnished by his express refusal. To hold otherwise ayouM be to infer his assent from incidental and collateral circumstances, against his own declaration, directly called out by the plaintiffs below in an endeavor to obtain from him a confirmation. Neither can we infer from the recognition of the partnership, the continuance in business and the like, an intent to ratify the notes. These incidents, at the most, could only imply a subsequent assent to the former voidable undertaking in the absence of facts repugnant to such an implication. But in this case, when the attention of the party was directly and clearly called to the matter by defendants in error, as already stated, and he was [318] applied to by their agent for payment, he in substance refused to be bound by the notes.
I am therefore of opinion that the facts found do not establish a ratification of the notes. It would seem from the finding that a portion of the goods for which the notes were given was sold by plaintiffs in error before Minock became of age and the remainder after that time. No ground is discovered upon which a recovery could be claimed for the goods sold during Minock’s minority. The acts of sale during that time would not imply a promise by him to pay the value of the goods, when his express promise, if made at the same time, would not be binding upon him, and there is no claim that after coming of age he made any express promise to pay for the goods. The disposition of what remained after Minock became of age could not have the effect to raise a promise by implication, to pay for the property sold before that time.
When a liability to pay for goods purchased for mercantile purposes during minority is implied from retention or sale after majority, it is confined to the goods which are -retained or sold after that time. The principle appears to bo that the party arriving at an age which makes him competent to bind himself, and being in a situation to exercise an option to return the goods and so disavow the purchase, or to keep or sell them, and so evince a design to stand as purchaser, his choosing to keep or sell is to be considered as implying a purpose to hold the position of purchaser and an election to be liable in that character. If the option does not exist, if the particular goods cannot be restored in consequence of their disposition during the minority of the party, the ground for implying a liability for such goods is wanting.
I think, however, that the facts found would, upon well [319] settled principles, bind both Minoek and Hadden, to pay the value, not exceeding the contract price, of so much of tbe goods, forming the consideration of the notes, as were disposed of after Minoek became of age, and tbat a recovery therefor could be supported under tbe count in tbe declaration for goods sold and delivered.
The plaintiffs in error obtained them without payment, and, after Minoclc’s majority, retained and sold them and pocketed the proceeds; and the circumstances imposed upon defendants in error a duty to pay for them. In such a-case the law allows a recovery upon the theory that the parties undertook to do what it was their duty to do.
The defendants in error having elected to proceed against Minoek and Hadden jointly, the amount recoverable could not go beyond the sum chargeable against Minoek, nor beyond the contract price of the goods; hut a recovery according to the value of the goods, not exceeding the agreed price, would be legally unobjectionable.
The finding furnishes no data for ascertaining the amount for which judgment should he rendered upon the principle stated, and therefore it will be necessary to order a new trial.
The other questions presented become immaterial.
Tbe judgment must be reversed with costs, and a new trial ordered.
The other Justices concurred.