
    John Ackerman v. John Runyon.
    In an action to recover for money lent to the defendant while an infant, his admissions of the amount received by him, though made during his infancy, are admissible as evidence of the sum loaned.
    The promise of the defendant, after attaining his majority, to pay the plaintiff what he owed him, is a sufficient promise to charge him with the indebtedness, although nothing was said at the time about the amount due.
    "What promise, made after majority, to pay a debt previously contracted, is sufficient to charge a defendant — considered.
    Appeal by defendant from a judgment entered on tbe report of a referee. This action was to recover for money lent. Tlfé' defendant pleaded infancy. Tbe cause was referred, and tbe referee found tbat tbe plaintiff bad lent money to tbe defendant to tbe amount of $122; tbat at tbe time it was lent tbe defendant was an infant, but tbat after be became of age be admitted tbe indebtedness, and promised to pay it. The report was in favor of tbe plaintiff for tbe sum of $122, with interest. Tbe evidence of indebtedness consisted of tbe defendant’s admissions while an infant. Subsequent to bis becoming of age, be said to tbe plaintiff’s salesman tbat be would pay tbe plaintiff wbat be owed bim, but nothing was said as to tbe amount. This was tbe proof of a promise to pay, upon which tbe plaintiff relied to sustain a recovery.
    
      J. 0. Halsted, for tbe appellant.
    I. Tbe only attempt to prove indebtedness is by an admission of tbe defendant while an infant. This is not competent, even to show tbat be was supplied with necessaries. Ingleden v. Douglas, 2 Starkie R. 36; Trueman v. Hunt, 1 T. R. 40; 4 0. & P. 104.
    II. No admission or promise by tbe defendant, amounting in law to a ratification, is proven. 1. There should be an admission of tbe whole debt, and a promise to pay it. Goodsell v. Meyer, 3 Wend. 479; Gay v. Ballou, 4 ibid. 405; Smith v. Mayo,’ 9 Mass. R. 84; Thompson v. Lay, 4 Pick. 48; 8 N. H. R. 376. 2. Where tbe defence is infancy, there must be an express ratification. Tibbatts v. Gerrish, 5 Porter N. H. E. 48; Sherman v. Walceman, 11 Barb. 254; Bigelow v. Grannis, 2 Hill, 120. 8. The promise proved was at most a conditional one, and the burthen rested upon the plaintiff to prove aliunde the correctness of his account. Miller v. Hewtell, 19 Wend. 301; Wright v. Steele, 2 N. H. E. 52; Quailes v. Littlepage, 2 H. & M. 401; Douglass v. Dane, 2 McCord, 219; 6 Conn. E. 494 ; 2 0. & P. 109; 9 Mass. E. 84; 9 Term. E. 865.
    
      J. F. Bowman, for the respondent.
   • Brady, J. —

The referee found that the sum of $122 was lent the defendant between January, 1851, and April 2d, 1852. That during that period the defendant was an infant; and that after his arrival at the age of twenty-one years he promised to pay the sum so found to be due.

The defendant insists that the finding by the referee of the amount due is not sustained by the testimony; that the only evidence on that subject is an admission made by defendant while an infant, that the account of the plaintiff which he examined was correct; and that such an account stated is not evidence against him after his maturity, even to show that he was supplied with necessaries. The case of Ingledew v. Douglass (2d Starkie Rep. 83) sustains this view. Lord Ellenborough at first doubted whether the statement was not evidence to show that necessaries had been supplied, but, after consideration, was of the opinion that the statement of the account by the infant could not be used against him. No reasons are assigned in the report, and what influenced the change in Lord Ellenborough’s opinion does not appear. The question has not been expressly adjudicated in this state, but I think may be considered settled on principle and by analogy. In the case of Gay v. Ballou (4 Wend. 403), the plaintiff proved the value of the board charged „ against the defendant during infancy, and examined several witnesses as to items in the bill of particulars. It was also proved that, prior to the defendant’s majority, he was furnished with a * bill of the charges of the plaintiff; that he examined it; said be did not know but that it was right, but he should like to have advice and consider it. He made no objections to pay any'itém in it. The bill so furnished corresponded with the bill of particulars. The proof as to the promise was, that the defendant had declared that he was willing to settle with the plaintiff, and pay him what he owed him, if anything. The court held that the admission of the defendant afforded sufficient evidence that the items of the plaintiff’s account were paid or furnished at his request. It is true, the court decided that an express promise need not be proven in order to render an infant liable for necessaries; and that if the demand is not for necessaries, and the issue made upon a new promise after maturitjfT' an express promise must be proved; but that does not affect the immediate question under consideration. The only admissions relating to the items of the plaintiff’s account were made prior to full age, and they, united with the promise to pay if he owed anything, were considered sufficient to charge him. This case, in that respect, is stronger than the one referred to. The account was admitted by the defendant, during minority, to be correct, without qualification, and the subsequent promise, after he became of age, to pay what he owed, is free from any hypothesis.

Again, in the case of Haile v. Lillie (3 Hill, 149), Lillie, an infant, sued Haile, for work, &c. On the trial evidence was given tending to show that a settlement had taken place between the parties, but the defendant insisted that no such settlement had taken place, and offered to prove the fact by the admission of the plaintiff: The testimony was rejected, but the judgment was reversed — Chief Justice Nelson declaring that “ the admissions of the plaintiff were evidence against him, though the admissions of an infant may frequently be controlled by the infant’s incompetency to bind himself by contract.” And again, “ The only privilege of an infant, who has arrived at years of discretion, even in civil cases, is an exemption at common law fron;, liability upon most of his contracts. Independently of this privilege, be stands in court upon tbe footing of an adult.” Tbis is undoubtedly tbe correct doctrine. Tbe admissions of an infant are evidence against bim for certain purposes, although such admissions do not create any liability. Tbe mere admission of tbe correctness of tbe account would establish only that tbe plaintiff and defendant bad transactions together, and that the result of such transactions left a balance due to tbe plaintiff without increasing tbe defendant’s liability to pay it. Without a promise to pay after maturity, tbe admission would be wholly immaterial for any purpose. There is no difference in principle between an admission of tbe correctness of an account and any admission affecting a material fact, such as tbe denial of a settlement by tbe infant, between bim and bis employer, tbe only "^object of which would be to show that tbe balance struck was not agreed upon. I can discover no reason why an admission, by an infant of discreet years, of tbe correctness of an account, should not be permitted to show tbe inchoate debt, which became absolute by promise after maturity. Tbe referee’s finding, therefore, on'that question must not be disturbed.

Tbe defendant also excepts to the finding of tbe referee, that tbe defendant promised to pay tbe account after bis maturity, which be admitted to be correct, but tbe conclusion of tbe referee on that subject must be upheld. The promise to pay was made in July or August, 1852. Tbe promise was an express one; more express, indeed, than tbe promise proved in Gay v. Ballou, supra, and yet that was held sufficient. In Bigelow and others v. Grannis (2 Hill, 120), tbe promise was made to a stranger, and tbe court held that it must be made to the plaintiff or bis agent. Tbe same doctrine was declared in Goodsell v. Myers (3 Wend. 481), but of tbe sufficiency of the promise no doubt was expressed. In neither of these cases was tbe promise express, though given to a stranger, and it was not therefore so legally formidable as tbe promise proved here: There is no reason for interfering with the report of the referee.

I remarked during tbe argument of tbis appeal, and have not changed my opinion since, that tbe only question of any importance was, whether the debt was sufficiently proved ? I. am satisfied that it was, for the reasons stated, and think the judgment is right, and should be affirmed.

Judgment affirmed.  