
    KIMMEL’S CASE.
    Where a man fails to disaffirm a contract made while under age, but retains property acquired thereunder, he thereby affirms the contract, and is liable thereon.
    Error to Common Pleas of York County.
    The facts of the case appear in the report of Levi Maish, Esq., who was appointed referee, as follows:
    “This is an action of assumpsit brought before William L. Keeoh, Esq., a Justice of the Peace in and for the county of York, on a note of $50, under seal with warrant to confess judgment, dated February 2nd, 1878, and payable ninety days after date ; drawn by David S. Kimmel, the defendant, in favor of Haas and Grove, the plaintiffs.-
    “An appeal was taken from the judgment of the Justice of the Peace, and the case referred to your Referee under the following agreement of the parties, namely :
    “‘We, Blackford & Stewart, attorneys for the plaintiffs, and Edward W. Spangler, attorney for the defendant, in this suit do hereby agree to select Hon. Levi Maish as a Referee under the terms of the 4th Section of the Act of the 9th of April, A. D. 1868, who shall hear and determine this suit according to the provisions of said Act and according to law. And we further agree that the said case shall be tried without a declaration, or other pleadings filed, with the same effect as if a sufficient declaration or other pleadings were filed, and that no exception or objection shall be made or taken for the want thereof, and that the said case shall be heard and determined on the testimony taken on the proceedings to open and set aside judgment No. 534, April Term, 1878, with the same effect as if taken by the Referee.’
    “A motion was made before the Referee to change the form of action from that of assumpsit to debt, which motion was allowed.
    “Objections were made before the Referee to certain questions contained in the depositions, which were propounded by the plaintiff’s attorney to Michael” Hoffman, McClellan Fink, Henry Haas, John Krantz and Charles Grove, witnesses in the case, on the ground that they are leading. To exclude the questions objected to would be equivalent to the exclusion of the principal part of the plaintiffs’ testimony. Under the agreement of the parties, the case is ‘to be heard and determined on the testimony taken on the proceedings to open and set aside judgment No. 531, April Term, 1878, with the same effect as if taken by the Referee.’ The questions to which objections are made are a part of this testimony. The depositions do not show that objections to these questions were made when the testimony was taken. The Referee thinks, therefore, that under the agreement, the defendant has waived his rights to object. For this reason, without deciding whether the questions are admissible, the Referee overrules all these objections.
    “The note on which this suit was brought was given for money due by the defendant to the plaintiffs, on several horsetrading transactions. In the Fall of 1877 the defendant traded a horse of his own for another belonging to the plaintiffs, and agreed to give $27.50 to boot. For this amount he gave his note. In February, 1878, Kimmel traded the horse he got from Haas & Grove on the former trade back to them for another horse, and on this trade agreed to give $22.50 to boot. He gave his note for $50.00 for the last amount and the former note, and the last note is the one on which this suit is brought. During the time that Kimmel was engaged in these transactions, he was a minor. He was born on April 10th, 1857, and consequently reached his majority on the 9th day of April, 1878.
    “It was contended-that the plaintiffs had warranted the horses traded to Kimmel to be sound, and that they possessed certain serious defects. The Referee cannot so find. The evidence does not show that fraud was practiced by either of the parties
    
      “The real question to be determined is whether Kimmel ratified the note drawn by him during his minority in favor of’ the plaintiffs, after he became of age. Various conversations were testified to, bearing upon this question. On May 6, 1878, after Kimmel became of age, Henry Haas, one of the plaintiffs, had a conversation with him, in which, Haas testified, he used this language: “I know that it is an honest debt, and that he would pay it as soon as he had the money; that he did not have the money just now.” McClellan Fink, a witness, heard this conversation, and corroborated Haas.
    “A conditional promise to pay like this is unavailing without proof of ability to pay; Chandler vs. Glover’s Administrator, 8 Casey 509; Everson, survivor, &c., vs. Carpenter, 4 Pickering 48; 1 Will. (Vt.) 646 ; 10 Mass. R. 137. This proof was fully supplied. Kimmel testified tnat “the money his guardian owed him is between one and two thousand dollars.”
    “The defendant denies that he made the declaration ascribed to him by Haas and Fink, on the 6th day of May. Haas is supported by the testimony of Fink, a disinterested witness, and in the absence of any evidence affecting the credibility of the witness, we must believe that Fink and Haas told the truth.
    “Charles Grove, the other plaintiff, testifies that on the 18th day of May, 1878, Kimmel said to him several times “that he would pay the note.” John Krantz and Michael Hoffman both heard at least one of these declarations of the defendant. They testified that they heard him say on that day “that he would come down to Dover the next Friday or Saturday and pay this note.” Kimmel does not deny that he promised to pay the note on that day, but he says his promise was a conditional one. This is his testimony : “What I said to Haas & Grove is this: They had sale, and had a man there, and I took this man and Haas and Grove together, and this man promised to fetch my horse at $125.00, and then I took this buyer and Haas and Grove together; then I told them providing they would fetch the horse at that price I would come down on Friday or Saturday, and pay them, but if they would not come up to this contract, that I would not pay them.” If this conversation took place at all, it is not the same that Krantz, Hoffman, Grove or Binder heard. The “man,” who is otherwise called “the Jew” in the testimony, was not produced as a witness, and Kimmel is contradicted by both Haas and Grove. — Nathaniel Binder testified that he heard Kimmel say to Grove that he (Kimmel) would come down the next Friday and pay the note, provided the Jew fetched the horse, and if he didn’t fetch him it would be just as it was.” Krantz and Grove were both present at this conversation, and perhaps Hoffman too, and they all deny having heard Kimmel make use of the condition which Binder has added. We are obliged to find, from all the testimony, that no 'such condition was made.
    “It was also proven that Kimmel, at the time this suit was brought, still had possession of the horse he got from the plaintiffs, and that he had been using him. It was also shown that the plaintiff’s offered Kimmel $70.00 and the note of $50.00 for the return of the horse, which he declined to accept; also, that Kimmel had offered the horse to the plaintiffs for $125.00, aud that he had, as he testified, “asked $5.00 more than the horse and. note amounted to.” So that according to the defendant’s own estimate of both transactions, the plaintiffs had offered to make full restoration to him, and he declined to accept it. In brief, the defendant failed to disaffirm the contract, kept possession of the property, and refused to return it when full restoration was offered him. Aside from the express promises to pay by the defendant, the Referee is of the opinion that these acts amount to a full ratification of the contract. In the case of Henry vs. Root, 33 N. Y. R. 526, it was held that an infant cannot retain the benefit of his contract, and thus affirm it, after becoming of age, and yet plead infancy to avoid the payment of the purchase money. See Tyler on Infancy and Coverture, 98. In the Case of Boody vs. McKinney, 23 Maine R. 577, Shepley, Judge, says: “When he continues to retain the specific property, or any part of it, after he becomes of age, it becomes his duty, within a reasonable time, to make his election. If such were not the rule, he might continue to use a valuable machine until nearly worn out, and thus derive benefit from it, and yet avoid the contract and refuse to pay for it ” See also the case of Boyden vs. Boyden, 9 Mete. R. 519.
    
      “The Referee, however, does not rest his decision of this case wholly upon this pi-inciple. There were express promises to pay the note, and also acts of the defendant that are equivalent to such promises. In view of all the evidence in the case, the Referee is of the opinion that the defendant ratified the note on which this suit is brought, after he became of age, and so he finds.'
    “And now, December 19th, A. D. 1879, the Referee finds for the plaintiffs and against the defendant, fifty-four dollars and ninety cents, with costs of suit.”
    To this report the defetadants’ counsel filed exceptions, the principal one being as follows: “The Referee erred in disregarding the consideration and determination' of the main question of fact and law in this contention, and which was the only question elaborately argued and strenuously pressed upon him for express adjudication, to wit: That even if the defendant made the express and unconditional acknowledgment of liability, as contended by plaintiffs, yet, inasmuch as not a particle of evidence was developed, showing that such acknowledgments were made by the defendant, with knowledge that he was notlegally liable, such declarations of confirmation are unavailing and inoperative in law, and the plaintiffs cannot recover.”
    Among the exceptions filed, there were two others, one on the ground that the Referee had not been sworn or affirmed, before or during the discharge of the duties of his appointment, as required by law, and the other that his report was not filed within ten days after the final hearing.
    After argument, the Court below dismissed the exceptions, confirmed the report, and entered judgment thereon in favor of the. plaintiffs below. This writ of error was then taken, the action of the Court in dismissing the exceptions being assigned as erroneous.
    
      E. W. Spangler, Esq, for plaintiff in error argued:
    This action was brought under the style of Haas &, Grove, without giving their full names, and without stating whether they sued as individuals or partners. This action cannot be sustained upon such gross irregularity. 1 Chitty on Pleadings, 12, 13, 256.
    The Referee bad no power to allow the form- of action to be changed.
    The Referee was not sworn. Act June 16, 1836, P. L. 717-28.
    His report was not filed in the Prothonotary’s office within ten days after the day of final hearing before him. Act 9th of April, 1868, P. L. 781.
    
      There was no legal evidence to sustain the Referee’s finding of facts, as the note upon which suit was brought was not produced nor offered in evidence, nor was the signature proven.
    The law of the Referee applies only to executed contracts.
    The retention of the consideration for which a note of an infant is given, after his coming of age, is not a ratification of the note. Berham vs. Bishop, 9 Conn. 330; Davidson vs. Young, 38 Ill. 145; Thing vs. Libbey, 16 Me. 55; Smith vs. Kelley, 13 Met. 309; Counts vs. Bates, Harp. (S. C.) 464; Dublin & Wicklow Railway Co. vs. Black, 16 E. L. and E. 558; Roof vs. Stafford, 7 Cowen 179.
    The obligation sued on, being under seal, carrying interest, and not being for necessaries, is void, and not voidable, and incapable of confirmation: Byles on Bills, 57; Thornton vs. Illingworth, 2 B. & C. 824; Earle vs. Reed, 10 Met. 387.
    In order to ratify an executory agreement made during infancy, there must not only be an acknowledgement of liability, but an express promise, voluntarily and deliberately made by the infant upon arriving at the age of maturity, and with the knowledge that he is not legally liable: Goodsell vs. Myers, 3 Wendell 479; Wilcox vs. Roath, 12 Conn. 550; Thrupp vs. Fielder, 2 Esp. R. 268; Ford vs. Phillips, 1 Pick 202; Thompson vs. Lay, 4 PicK 48; Gay vs. Ballou, 4 Wend. 403; Smith vs. Mayo, 9 Mass 62; Whitney vs. Dutch, 10 Mass. 460; Millard vs. Hewlett, 19 Wend. 301; Hodges vs. Hunt, 22 Barb. 150; Watkins vs. Stevens, 4 Barb. 168; Jackson vs. Carpenter, 11 Johns. 539; Bigelow vs. Grannis, 2 Hill 120; Hale vs. Gerrish, 8 N. H. 374; Thornton vs. Illingworth, 2 Barn & C. 824; Tucker vs. Moreland, 10 Peters 73; Curtin vs. Patton, 11 S. & R. 307; Hinely vs. Margaritz, 3 Barr 428.
    The burden ol proving this knowledge lies on the party alleging the confirmation: Hinely vs. Margaritz, 3 Barr 428; Clark vs. Burn, 5 Norris 508.
    This Court has the power to review the finding of the Referee: Phillip’s Appeal, 18 P. F. Smith 138; Hindman’s Appeal, 4 Norris 470.
    
      Messrs. Blackford & Stewart for defendants in error argued:
    The Referee decided this case upon the ground that as the plaintiff in error was still in possession of the property at the time the suit was brought, and had refused to deliver it when full restoration was offered him, he had ratified his contract, and was liable thereon: Delano vs. Blake, 9 Wendell 86; Kitchen vs. Lee, 11 Paige 108; Boyden vs. Boyden, 9 Metcalf 521; Badger vs. Phinney, 15 Mass. 863; Sharswood’s Black. Com., 1st Book 466, footnote.
    This principle applies to personal as well as real property: Smith vs. Kelley, 13 Met. 309; Dublin & Wicklow Railway Co. vs. Black, 16 L. & E. R. 558; Badger vs. Phinney, supra; Boyden vs. Boyden, supra; Kitchen vs. Lee, supra; Delano vs. Blake, supra.
    
    A mis-joinder or non-joinder can only be taken advantage of by a plea in abatement: Backenstoss vs. Stahler’s Adm’r, 9 Casey 257; Railroad vs. Boyer, 1 Harris 497; Bacon vs. Sanders, 4 Wharton 148.
    The plaintiffs below would have had the right to file a declaration in debt, even though the form of action before the Justice was assumpsit: Lyon vs. Chalker, 2 Watts 14; Steckel vs. Weber, 8 Harris 434; Esher vs. Flagler, 17 S. & R. 141; Kraft vs. Gilchrist, 7 Casey 470.
    Proceedings before Justices are not governed by strict rules in regard to the forms of actions: Kraft vs. Gilchrist, 7 Casey 470.
    All questions with regard to the form of action must be considered as waived: Steckel vs. Weber, 8 Harris 435; Woodring vs. Forks Township, 4 Casey 362; McGill vs. Rowand, 3 Barr 451.
    Thé Court had the right to change the form of the action: Act 10 May, 1871, P. L. 265, § 1.
    The practice in the Courts of York County for the past twelve years has been not to swear the Referee.
    The Referee’s delay in filing his report would only have been ground for a rule on him to file the same.
    The failure to offer the note in evidence is a matter that was not raised before the Referee, nor the Court below, and, therefore, this Court will not consider it on a writ of error: Wollenwebber vs. Ketterlinus, 5 Harris 389; Bergner vs. Palethorp 2 W. N. C. 297.
   On May 17, 1880, the decision of the Court below was affirmed by the Supreme Court in the following opinion:

Per Curiam.

This case originated before a justice of the peace. The parties, by agreement filed, selected a referee under the Act of 9th of April 1868, P. L. 780. They further agreed that the case should be tned without a declaration or other pleadings, and that no exceptions or objections should be taken or made for the want thereof, and -that it should be heard and determined on. the testimony taken in a previous case between the parties.

The clear intention then was, that the trial should be on the merits, regardless of all technicalities., The power of the Referee was most ample to disregard the form of action or consider it changed to suit the evidence. His finding of facts sustained his conclusion of law. We see no sufficient reason for holding that this finding of facts was not sustained by the evidence. Some of the exceptions are to facts outside of the record. As they were not sustained by the Court below, we will not assume the facts therein charged were proved. The evidence on which the Court acted is not before us. The just inference is, that all the substantial requirements, not waived by the parties, were observed by the Referee. In view of the agreement under which the case was submitted and tried, nothing less than a clear and substantial error should be suffered to defeat the purpose of the parties. We discover no such error.

Judgment affirmed.  