
    James Philpot, plaintiff in error, v. The Sandwich Manufacturing Co., defendant in error. Same v. Same.
    1. Infant. Contracts of an infant, other than for necessaries, are-voidable only, and upon coming of age ho may affirm or avoid in his discretion.
    2 ---. If an infant purchase personal property and give his promissory note therefor, he can not, upon arriving at the age of twenty-one years, retain the property and plead infancy as a, defense to the note.
    Error to the district court for Nemaha county. Tried below before Broady, J.
    
      J. Ii. Haldeman, for plaintiff in error.
    
      E. H. Wooley, for defendant in error.
   Maxwell, J.

These are two cases between the same parties, in which substantially the same questions are presented, and they will be considered together. The actions were brought upon certain promissory notes given by the plaintiff aud one John Beadle for certain machinery. The defense set forth in the answers was, that the said James Philpot was an infant within the age of twenty-one years.” On the trial, a jury being waived in each case, the court made special findings of fact, which in the first case submitted are as follows:

1st. The court finds that when the defendant James Philpot signed the note sued on in this action, he was an infant under the age of twenty-one years, and that he arrived at his majority on or about March 10, 1883; that after the maturity of said note, and after said Philpot had arrived at full age, and before commencement of this action, he, said Philpot, made payments on said note, and promised the agent of plaintiff, who held said note for collection, that he would pay the balance due on said note if the defendant Beadle did not pay the same, and if plaintiff could not get said balance of said Beadle. That said Beadle did not and has not paid said balance, and plaintiff has not and could not get said balance of said Beadle. That when said Philpot made said promise he did not know he was not legally liable to pay said note, and that there is due and unpaid on said note the sum of $58. To which Philpot excepte.

2d.' As a conclusion of law, the court finds that the defendant, James Philpot, is liable to plaintiff on said note, and that plaintiff is entitled to recover thereon against said Philpot said sum of $58.

The finding in the second case is substantially the same as in the first, except as to payment and the amount.

There is a want of harmony in the decisions in regard to the liability of an infant upon his obligations. Thus, Coke states the rule to be that an infant will not be bound by a personal obligation even where it is given for necessai’ies. Co. Litt, 1725.

In Keam v. Boycott, 2 H. Black, 511, Chief Justice Eyrie laid down the doctrine that where the court could pronounce the contract for the benefit of the infant as for necessaries, it w'as valid; where the court found the contract prejudicial to the infant it was void; and in cases where the benefit or prejudice was uncertain the contract wras voidable only. Judge Story declared these instructions to be founded on solid reason. 1 Mason, 82. In this country the courts, at the present time, generally divide the contracts of an infant into those for necessaries, which are binding upon him; and other contracts, which are voidable at his election on coming of age. The well settled rule, therefore, is that a negotiable note of an infant is not void but voidable only. Goodsell v. Myers, 3 Wend, 479. Wright v. Steele, 2 N. H., 51. Best v. Givens, 3 B. Mon., 72. Keil v. Healy, 84 Ill., 104. Irwin v. Irwin, 9 Wall., 617. After an infant has arrived at the age of twenty-one years he may disavow or ratify any contracts not made for necessaries. In the absence of any statute providing how a contract shall be ratified, any one of three modes ordinarily will be sufficient. 1st. An express ratification. 2d. Acts which imply an affirmance. 3d. The omission to disaffirm in a reasonable time. The particular acts which constitute a ratification must necessarily depend to a great extent on the nature of the contract. When it is executed and beneficial to the infant— as where he has purchased real estate — it vests in him the freehold until he disagrees to it, and the continuance in possession after he is of age is an implied confirmation of the contract. So as to a lease. Delano v. Blake, 11 Wend., 85. Jones v. Phenix Bank, 4 Seld., 228. And an infant can not be permitted to retain personal property purchased by him, and at the same time repudiate the contract upon which he received it. Kitchen v. Lee, 11 Paige, 107. Lynde v. Budd, 2 Id., 190. Deason v. Boyd, 1 Dana, 45. Cheshire v. Barrett, 4 McCord, 241. Ottman v. Monk, 3 Sandf., 431. He who asks equity must do equity. In the case at bar the purchase was a joint one. The plaintiff, after coming of age, so far as appears, made no offer to return the property, but still retains possession. He also made payments on the notes. This we regard as a suffi-' cient affirmance of the contract. The law which enables a party who has purchased property during infancy to disaffirm on coming of age, is to be used as a shield and not as a sword — as a means by which- he may be discharged from a contract which he deems prejudicial. The object is not to enable him to rob others of their property, but upon making restitution to be discharged from the contract. The fact that when Philpot made the promise, after coming of age, to pay the notes, he did not know that he was not legally liable to pay said notes, is not material in this case, and need not be considered, there being a sufficient ratification by other acts of the plaintiff. The plaintiff in error has the property, the fruit of the contract. There is no claim or charge that it was of less value than the price agreed to be paid. Honesty and fair dealing require that he should pay for the same. There is no error in the record, and the judgment is affirmed.

Judgment affirmed.

The other judges concur.  