
    Anderson v. Soward.
    Where a person of full age promises to perform a contract entered into during his minority, he thereby ratifies the contract, although he does not know at the time of the promise, that by reason of his minority at the time of the contract, he is not legally liable thereon.
    Error to the District Court of Greene county.
    The plaintiff in error filed his petition in the common pleas and alleged: That said defendant executed and delivered to him on the 12th day of February, 1868, his certain promissory note of that date, a copy whereof with all endorsements thereon is hereto attached and made part of this petition, and thereby promised to pay to the order of said plaintiff the sum of thirty dollars within one day from and after said date. Said note is long past due and no part thereof has been paid, except the sum of ten dollars on the 17th day of June, A. D. 1868, and on said 17th day of June, 1868, defendant promised to pay the balance due on said note, and there is due thereon from said defendant to the plaintiff the sum of $20.63, with interest from June 17th, 1868, wherefore plaintiff prays judgment against said defendant for the sum of $20.63, with interest from June 17th, 1868, to which the defendant answered: That at the time said note is alleged to have been given, to wit: February 12th, 1868, he was a minor, that he was under 21 years of age, and that he made the payment of ten dollars on said note without the knowledge that he was not legally liable on said note. That he was 21 years of age on the 21st day of March, 1868.
    The plaintiff demurred to this defense and the court overruled the demurrer. The plaintiff failing to reply, judgment was given for the defendant. This judgment was affirmed by the district court, and to reverse both judgments a petition in error is filed here.
    
      T. L. Magruder, for plaintiff in error.
    The defendant being of full age at the time of ratification he must be presumed to know his legal liabilities and privileges, and could not avail himself of a mistake of law on his part.
    Ignorance of the law should not, and does not, avail an adult any more in this than in other cases. Schouler on Dom. Rel. § 590, and cases there cited -, 2 Kent’s Com., 491, note; 1 Story’s Ecp, 111; Tyler on Infancy, § 58.
    I know there is a current of authority to the effect that acts of confirmation by an infant are required to be made with a knowledge that he is not liable on the contract, and this seems to be the doctrine laid down in the text and elementary books, such as Parsons, Greenleaf, Tyler and Braqdt, but they merely repeat the mere obiter dictum of an English judge in a case — Harmer v. Killing — in which this point was not decided, or even raised, and it has been thus transferred into the text books, the writers evidently never examining the cases cited to support it, the later ones simply following the older ones, and only stating it as an abstract proposition of law, and citing the same cases in support of it. I ask an examination of the cases cited, and it will be found that in not one — except an old case in 3 Pa. St., (Barr,) 428 — was the point decided or raised, and the dictum of the judge in the English case constituted the basis of the Pa. decision. The eases cited by all these text books are the English cases mentioned: Harmer v. Killing, 5 Esp. R., 102; Curtin v. Patton, 11 S. & R., 311; Bead v. Boshears, 4 Sneed, 118; Norris v. Vance, 3 Rich., 168; and Hinelyy. Margaritz, 3 Pa. (Barr,) 428, and, except the last, in not a single one of them was the point adjudicated. The American cases have followed the English one, and, in that, the evidence was, that after the infant was of full age, upon being threatened with an arrest, promised to give a note, but afterwards refused to give it; his promise was made under duress per minas — threats of unlawful imprisonment — and the court say, “he might bind himself by a new promise after he obtained full age, but such promise must be voluntary and given with knowledge that he then stood discharged by law; that where an infant, under the terror of arrest, had a promise extorted from him he was not bound by it. It is very manifest that the only adjudged point in the case was that his promise was made under duress per minas. Therefore it will be found that in the cases cited by the text books (saving Sinely v. Margaritz) the exact point in question has never been adjudged. In fact the only cases in which the precise question has been raised are those of Taft v. Sergeant, 18 Barb., 320; Morse v. Wheeler, 4 Allen, 570.
    
      F. P. Cunningham, for defendant in error.
    A ratification of a contract made by a minor, to be binding, must have been made by the adult, having full knowledge at the time he ratifies the contract, that he was not legally liable in the original contract. This is the law as laid down in all the text books so far as we have been able to find. Greenleaf on Ev., Redfield’s ed., vol. 2, pp. 321, 322 and 323; Parsons on Contracts, 5th ed., volume 1, pp. 323 and 324; Taylor on Infancy and Coverture, pp. 86, 87 and 96 ; Story on Contracts, sec. 69; Brandt on Suretyship, sec. 3 ; Parsons on Mercantile Law, vol. 1, p. 5; Baylies on Surety-ship and Guar., pp. 51 and 52.
    It will scarcely do to say that all these law-writers have mistaken the law in such case.
    Taylor says the doctrine above stated seems to be recognized by all the elementary writers on the subject, p. 96. The same doctrine is held in the following cases: 112 Mass., p. 428, Owen v. Long; 40 Indiana, p. 148 ; 3 Pa. St., p. 
      Minely v. Margaritz; 3 Richardson, S. C., pp. 164-8; 9 Mass., p. 64, Smith v. Mayo; 1 Pick., pp. 202-3, Ford v. jP/w'iip; 11 S. & R., p. 307; 5 Esp., p. 102, Manner v. Milling; 16 Maine, p. 67, Thing v. Libbey; 4 Sneed (Tenn.,) p. 118 Reed v. Roshears; 14 Mass., p. 457, Whitney v. Mutch; 1 Met., p. 168, Price v. Toby; 110 Mass., p. 365, Bradford v. French; 1 Exch., p. 122, Maines v. Wall.
    
    The case relied upon by plaintiff in 4 Allen, is an old case, and there are several later cases-in Mass., that hold the contrary, as laid down in the syllabus in case of Owen v. Long, 112 Mass., p. 428, above cited.
    We claim that it was not only a question as to mistake of law, but of facts as well, and such a mistake as the defendant might well be relieved in.
   McCauley, J.

The contracts of an infant generally are not void, but only voidable. Harner v. Dipple, 31 Ohio St., 72; Owen v. Long, 112 Mass., 403; Fetrow v. Wiseman, 40 Ind., 148; Whitney v. Dutch, 14 Mass., 457. There is nothing in the case to show that the note set forth in the petition is such as should be held to be void. It is conceded that the contract is one that might be ratified by the minor after his majority, and that the part payment of the note and the promise alleged in the petition amount to a ratification, unless it was necessary that the defendant when he made the payment and promise, knew that his infancy when the note was given, was a defense in law to an action on the note.

Counsel for defendant in error refer to Hinely v. Margaritz, 3 Pa. St., 428 ; Curtin v. Patton, 11 S. & R., 311; Reid v. Boshears, 4 Sneed, 118; Norris v. Vance, 3 Rich., 168; Owen v. Long, 112 Mass., 428; Fetrow v. Wiseman, 40 Ind., 168; Harmer v. Killing, 5 Esp., 102; and many other cases in which it is claimed this knowledge has been held to be necessary to a ratification. An examination of all these cases and many others in which the rule as claimed, is in some way recognized, shows that in one case only, that of Hinely v. Margaritz, has the rule been held. In no one of a great number of cases in which it is stated as the law, or in some way referred to, was the rule involved or in any way pertinent to the case. The necessity of such knowledge’has been stated as the law, in numerous text books, as an exception to the rule that a promise to perform a contract made with knowledge of the facts which make a defense waives the defense. As in Rindskopf v. Werley, 28 Ohio St., 516; Bank v. Colcord, 15 N. H., 119; Fowler v. Brooks, 13 Id., 240. But no one of those thus stating the rule has attempted to give any reason why this knowledge should be necessary to affirm a contract made in minority, when it is conceded not to be necessary to waive a defense in any other case.

In many, or all of the cases above referred to, it is stated that a ratification made with knowledge that minority was a defense, was complete and binding. If a promise without this knowledge was sufficient, the knowledge superadded would not detract from the affirmance. But in Morse v. Wheeler, 4 Allen, 570, and Taft v. Sergeant, 18 Barb., 320, the-necessity of such knowledge was directly involved and in both cases it was held that a contract could be affirmed by a promise to pay after majority, whether it was known or not that minority was a defense. We assent to the rule stated in these cases, that a ratification after majority is a waiver of a purely personal privilege, and that the general rule, that a new promise made with knowledge of the facts which make a defense, waives the defense, is quite as applicable to a case of this kind as to any other.

Judgment reversed.  