
    Henderson v. Fox.
    By the assignment of a promissory note, the assignor warrants that the note is valid, and that the maker is liable to pay it.
    The only contract binding on an infant is the implied contract for necessaries.
    The express contracts of an infant, as by bond and note, are not, as such, binding, and can not he enforced without ratification, even if given for necessaries.
    Whether the articles furnished to an infant were, in the particular case, necessaries, is a question of law, to he determined by the Court. Their quantity, quality and value, are to he ascertained by the jury.
    The assignee of a promissory note made by an infant, may proceed in the first instance against the assignor, without suing the maker.
    Suit by the assignee against the assignor of a promissory note given by an infant. The declaration, after alleging the making and indorsement of the note, &c., and the infancy of the maker, averred that the note was not given for necessaries.
    
      Held, that, even admitting the liability of the infant if the note was given for necessaries, the averment that it was not so given was surplusage, and imposed no additional proof upon the pleader.
    
      Held, also, that if, between the making of the note and its maturity, the infant had arrived at full age and ratified his express contract, the burden of proving that fact was upon the defendant.
    ERROR to the Johnson Circuit Court.
    
      Thursday, December 7.
   Stuart, J.

Assumpsit by Fox against Henderson on a promissory note, made by Webb to Henderson, and by the latter assigned to Fox. The declaration alleges the making and indorsement; that Webb, the maker, was an infant; and that the note was not given for necessaries. The suit was commenced before a justice, where Fox had judgment. Henderson appealed to the Circuit Court. Trial, and judgment for Fox for 63 dollars and 88 cents.

At the proper time, the defendant below interposed a motion for a new trial, which was overruled, and all the evidence set out in a bill of exceptions. Henderson prosecutes his writ of error.

The note, indorsement in the usual form, and proof of the infancy of Webb, the maker, was all the evidence adduced.

The only question presented is, was the infancy of the maker of the note sufficient to entitle Webb to his action in the first instance against Henderson, the indorser, without having recourse to the maker?

By the assignment Henderson warranted that the note was valid, and the maker liable to pay it. Howell v. Wilson, 2 Blackf. 418.

The authorities are painfully conflicting on the question whether an infant’s express contracts be void or only voidable. Story on Prom. Notes, ss. 75 to 78 inclusive, and the authorities cited. — Chitty on Contracts 153, note 1. Id. title “Infant.” — J Am. Leading Cases 86, and note, in which the authorities are elaborately collected and reviewed. The rule deducible from all the authorities is, that the only contract binding on an infant is the implied contract for necessaries. Express contracts, as by bond or note are not as such binding, and can not be enforced without ratification, even if given for necessaries. For whether the articles furnished were, in the particular case, necessaries, is a question of law, to be determined by the Court. And if deemed necessaries, then their quantity, quality, and reasonable price, is for the consideration of the jury. But if, on the contrary, the express contracts of infants, even when necessaries, so called, were the consideration, could be enforced, these important questions might be improvidently settled by the infant himself, beyond the supervision of the Courts.

Hence, text-writers, in enumerating persons incompetent to contract, meaning incompetent to become parties to an express contract, specify infants, married women, alien enemies, and insane persons. Story, supra, s. 75. — Chitty on Contracts 141. — 1 Comyn on Contracts 148. The exceptions under these several heads, for instance, the implied promise of an infant to pay for necessaries, have no application to the present case.

The infancy of Webb, the maker, was, therefore, a sufficient excuse why the assignee might proceed in the first instance against the assignor, without suing the maker. Even if it were admitted that the infant was liable on the note, provided it were given for necessaries, the character of the consideration would be matter of defence. Nor would the negative allegation of the declaration, that it was not given for necessaries, change the rule. For that allegation is not, in the present case, descriptive, or of such a nature which though unnecessarily or improvidently made by the pleader, he would be bound to prove. The maldng and indorsement of the note, and the infancy of the maker, were all that was essential to the plaintiff’s right of recovery. The residue was surplusage. 1 Chitty Pl. 330. The question of necessaries, if available at all, was matter of defence. So, also, if between the maldng and the maturity of the note, Webb had arrived at full age and ratified his express contract. Such matters coming properly from the other side, impose upon the defendant the burden of proof; both because they are not essential to the plaintiff’s recovery, and that the means of proof are presumed to be more in the power of the party holding the affirmative, and in whose favor they tend to operate.

G. M. Overstreet and A. B. Hunter, for the plaintiff.

F. M. Finch and J. Slater, for the defendant.

We do not deem it necessary to discriminate very nicely what acts of an infant are void, and what only voidable. Nor is it worth while to inquire how far the negotiable character of promissory notes, under our statute, might affect the question. It seems to us sufficient that Webb was an infant. As such, he was clearly not liable within the rule laid down in 2 Blackf., supra.

Per Curiam. — The judgment is affirmed with costs.  