Proctor v. Sears

86 Mass. 95

• Court: Massachusetts Supreme Judicial Court
• Decided: January 15, 1862
• Status: Published

Opinion

Metcalf, J.

The right instructions were given to the jury. It has long been settled —■ as was said by Parker, J. in Smith v. Mayo, 9 Mass. 64 — that “ a direct promise, when of age, is necessary to establish a contract made during minority, and that a mere acknowledgment will not have that effect.” See the authorities collected in 2 Greenl. Ev. § 367, and Story on Sales, (3d ed.) 36, 37.

The testimony in the case was contradictory; and the jury must have found, under the instructions which they received that the defendant did not promise, after he came of age, to pay the note; or, that if he did promise to pay it, or a part of it, when he should be able, the plaintiffs had not proved that he was able to pay. Thompson v. Lay, 4 Pick. 48.

Exceptions overruled.