The averment that the plaintiff never had any contract or negotiations with George is not sustained by the proof, for the testimony of Joseph N. Risley, the agent who made the sale, which is the only evidence on this point that appears in the case, is that the defendant told him he was going out of business and intended to transfer it to George; requested him to see George; he did so, talked with him; he looked at the patent; was satisfied with it, and talked with his father about buying it. The deed for the patent right in Atlantic county was drawn to George P. Lippincott. It proved by the admission of the defendant, Barclay Lippincott, that, the time of such sale and transfer his son George was a minor. This admission is competent testimony in this suit against him.

A verdict of a jury was given for the plaintiff against the defendant in the court for the trial of small causes; and on the trial of the appeal in the Court of Common Pleas there was a judgment of non-suit against the plaintiff. The reason for the non-suit does not appear on the record, but the counsel have argued the cause before us on the case presented by the pleadings and proofs, the contention being here, as it was below, that the plaintiff could not aver and show the infancy of George P. Lippincott, and bring this action against Barclay Lippincott, as principal in the contract. in contradiction of its express terms.

On the face of the written agreement George P. Lippincott is the principal, and Barclay Lippincott the agent. The suit on the contract should therefore be against the principal named, and not against the agent, unless there be some legal cause shown to change the responsibility. The cause assigned by the plaintiff is the infancy of George at the time the agreement was made in his name by his father. The authority on which he bases his right of action is Bay v. Cook, 2 Zab. (N. J.) 343, which follows and quotes Mott v. Hicks, 1 Cow. (N. Y.) 513, 13 Am. Dec. 550, to the effect that if a person undertakes to contract as agent for an individual or corporation, and contracts in a manner which is not legally binding upon his principal, he is personally responsiible, and the agent, when sued on such contract, can exonerate himself from the personal responsibility only by showing his authority to bind those for whom he undertakes to act. Bay v. Cook was an action against an overseer who had employed a physician to attend a sick pauper, without an order for relief under the provisions of the act concerning the poor. As his parole contract with the physician was entirely without authority to bind the township, it was said that he had only bound. himself to pay for the services rendered at his request.

Later cases have held that an agent is not directly liable on an instrument he executes, without authority, in another's name; that the

remedy in such cases is not on the contract, but that he may be sued either for breach of warranty or for deceit, according to the facts of the case. Jenkins v. Hutchinson, 13 Q. B. 744; Lewis v. Nicholson, 18 Q. B. 503; Baltzen v. Nicolay, 53 N. Y. 467; White v. Madison, 26 N. Y. 117, and many other cases collected in the notes in Wharton on Agency Par. 524, 532, and notes to Thompson v. Davenport, 9 B. & C. 78, in 2 Smith's Lead. Cas. 377 (Am. ed). Andrews, J., in Baltzen v. Nicolay, supra, says: "The ground and form of the agent's liability in such a case has been the subject of discussion, and there are conflicting decisions upon the point; but the later and better-considered opinion seems to be, that his liability, when the contract is made in the name of principal, rests upon an implied warranty of his authority to make it, and that the remedy is by an action for its breach."

Although the state of demand in the present case is uniformly drawn, there is in the last sentence a charge that the defendant's warranty of authority in pretending to act for said minor is broken, whereby an action has accrued. This alleged breach of an implied warranty is founded on the assumption that the son could not confer any authority during his minority to his father to act for him in the purchase of this patent right. There are two answers to this position. The act of an infant in making such a contract as this, which may be for his benefit in transacting business, either directly or through the agency of another, is voidable only, and not absolutely void, and therefore there is no breach of the implied warranty unless there be proof showing that the act of the agent was entirely without the infant's knowledge or consent. The mere fact of the infancy of the principal will not constitute such breach.

It was argued in Whitney v. Dutch, 14 Mass. 457, 7 Am. Dec. 229, that a promissory note signed by Dutch for his partner Green, who was a minor, was void as to Green, because he was not capable of communicating authority to Dutch to contract for him, and that being void, it was not the subject of a subsequent ratification. But the court held that it was voidable only, and having been ratified by the minor after he came of age, it was good against him. See Tyler. Inf. Ch. 111, Par. 14, 18.

Another answer is that the defense of infancy to this contract with the plaintiff can only be set up by the infant himself or those who legally represent him. Infancy is a personal privilege of which no one can take advantage but himself. Voorhees v. Wait, 3 Green (N. J.) 343; Tyler Inf. Ch. IV, Par. 19; Bingham, Inf., 49.

In this case the plaintiff seeks to disaffirm the infant's contract with him, in his own behalf, and sue a third party on the contract, whose authority to bind him the infant has not denied. The privilege of

affirming or disaffirming the contract belongs to the infant alone, and the plaintiff cannot exercise it for him. The mere refusal to pay, charged in the demand and proved, is not a denial of the defendant's authority to bind the infant, for it may be based on the failure of consideration, the invalidity of the patent, fraudulent representations, or other causes. The judgment of nonsuit entered in the Court of Common Pleas will be affirmed.

WHAT ARE NECESSARIES?

MCKANNA V. MERRY

61 Ill. 177 (1871)·

THORNTON, J. In 1864, Kate Feehan, since intermarried with McKanna, accompanied appellee and wife on a trip from Illinois to California, by water. Her passage money was paid by appellee. Kate was then an infant, and under the control of her guardian, who was desirous that she should attend school for another year, and disapproved of the trip.

The only proof as to the value of her estate is, that it consisted of an undivided one-third of some realty, which after her marriage, and a few years after the advancement of the money, was sold for $3,250.

There is no proof that this trip was necessary for her health, or that it subserved any purpose other than pleasure, or as company for the wife of appellee.

The court gave for appellee the following instructions:

"What are necessaries depends upon the circumstances of the case. If the going of the defendant, Kate, to California was prudent and proper, under the circumstances proved, and the plaintiff advanced money necessary to take her there, and the same was for her benefit, then it is for the jury to determine whether such advances of money were for necessaries."

There is no positive rule by means of which it may be determined what are, and what are not, necessaries. Whether articles are of a class or kind for which infants are liable, or whether certain subjects of expenditure are necessaries, are to be judged by the court. Whether they come within the particular class, and are suitable to the condition and estate of the infant, is to be determined by the jury as matter of fact. For example, suppose this trip had been to Europe, involving in time, several years, and an expenditure of thousands of dollars, would any court hesitate to decide that the money thus advanced did not constitute necessaries? Chitty on Con. 141a, note 2; 1 Parsons Con. 296; Beeler v. Young, 1 Bibb. (Ky.) 519; 1 Am. Leading Cases 248.

The court, in the instruction, merely informed the jury that, if the trip was prudent and proper, and that the money was for her benefit, then the jury must determine whether such advances of money were for necessaries. There was not a particle of proof to enable the jury to determine as to the propriety or impropriety, the prudence or imprudence of the trip, or that the advancement of the money was for the benefit of appellant.

Even if there had been such proof, the instruction was wrong. The court should have defined necessaries in some manner. Blackstone defines necessaries to be "necessary meat, drink, apparel, physic," and says that an infant may bind himself to pay "for his good teaching and instruction, whereby he may profit himself afterwards." The articles furnished, or money advanced, must be actually necessary, in the particular case, for use, not mere ornament, for substantial good, not mere pleasure, and must belong to the class which the law generally pronounces necessary for infants.

The courts have generally excluded from the term "necessaries," horses, saddles, bridles, pistols, liquors, fiddles, chronometers, etc. It has been held, however, that if riding on horseback was necessary to the health of the infant, the rule was different.

We have been referred to no case, and, after a thorough examination have found none, in which it has been held that moneys advanced for traveling expenses, under the circumstances of this case, were necessaries.

The court should have instructed the jury as to the classes and general description of articles for which an infant is bound to pay. Then the jury must determine whether they fall within any of the classes and whether they are actually necessary and suitable to the estate and condition of the infant.

It may be proper to advert to another principle. The infant had a guardian, who had charge and management of her estate, which consisted entirely of realty. It was the duty of the guardian to superintend the education and nurture of his ward, and apply to such purpose first, the rents and profits of the estate, and next the interest upon the ward's money. This is the positive command of the statute, and he was liable, upon his bond, for non-compliance. He was the judge of what were necessaries for his ward, if he acted in good faith.

A third party had no right to intervene and usurp the rights and dùties of the guardian. Even if the money paid was, in some sense, for the infant's benefit, and the trip was prudent and proper, yet, if the guardian, in good faith, and in the exercise of a wise discretion, and with reference to the best interests of his ward, supplied her wants and contributed means suitable to her age and station in life, and in view of her

estate, then the infant would not be liable for the money, as necessaries. Beeler v. Young, supra; Kline v. L'Amoureux, 2 Paige (N. Y.) 419; Guthrie v. Murphy, 4 Watts (Pa.) 80; Wailing v. Tall, 9 Johns (N. Y.)

141.

Judgment reversed and the cause remanded.

A MINOR'S CONTRACT FOR NECESSARIES IS VOIDABLE BEFORE SUCH NECESSARIES ARE ACTUALLY SUPPLIED HIM

WALLIN V. HIGHLAND PARK COLLEGE

127 Iowa 131, 102 N. W. 839 (1905)

The plaintiff, a minor entered the pharmacy department of Highland Park College under a written contract that provided for a course of 12 weeks' instruction therein, and for the payment of a stated sum for tuition, board, room rent, light, heat, etc., aggregating the sum of $83. He paid this sum in advance, quit the school soon thereafter, and brings this suit to recover the unearned portion of the sum so paid. Judgment for defendant. Appeal.

SHERWIN, C. J. There is no dispute as to the facts in this case, and it conceded that a course in pharmacy may come within the definition of necessaries for which a minor may be bound by contract; hence the vital question for determination is whether a minor's contract for necessaries is voidable before such necessaries are actually supplied him. In other words, may a minor disaffirm an unexecuted contract which would have bound him absolutely had it been fully performed. Section 3189 of the Code, in effect, says that a minor is bound by his contract for necessaries, and by all other contracts unless they be disaffirmed, etc. But in construing the statute we should look to the reason thereof as an aid to a just determination of the legislative intent. An infant in law has from the earliest time been the ward of the court, and, speaking generally, is incapable of making other than a voidable contract. The one universal exception to this rule is that he may bind himself to pay for his necessary "meat, drink, apparel, physic, and such other necessaries; and likewise for his good teaching and instruction, whereby he may profit himself afterwards." 1 Cooley's Blackstone, 412. An infant is not permitted to contract generally, because of his immature judgment, and the injury he might suffer on account thereof, and he is only permitted to contract for necessaries because otherwise he might suffer for want of them. It is therefore apparent that the protection of the infant is the purpose of the exception as well as of the general rule