Catlin v. Haddox.

the payments were made, and if made do not prove that they were made by the defendant. The payment of $50 was made, if at all, when she was absent from the state and a married woman, and may have been made by her husband, and there is no date to the indorsement of the year's interest.

2. But even if they prove the payments claimed they prove only a bare acknowledgment of indebtedness, which is not enough to ratify the contract of an infant, unless in certain excepted cases which do not embrace the present case. In such a case as this an express promise is necessary. 2 Greenl. Ev., § 367; 1 Chitty on Cont., 216; Benham v. Bishop, 9 Conn., 330; Wilcox v. Roath, 12 id., 550; Robbins v. Eaton, 10 N. Hamp., 561; Ford v. Phillips, 1 Pick., 202; Smith v. Kelley, 13 Met., 309; Thrupp v. Fielder, 2 Esp., 628.

3. The suit can not be maintained against the wife alone.

LOOMIS, J. The note in suit was executed by the defendant when she was a minor and unmarried. Subsequently she married and removed with her husband to the state of Alabama, and resided there with him until his death in 1861. In 1866 she was married to her present husband, W. T. Haddox, with whom she has resided in Alabama since the fall of 1868. The payee of the note died in 1877, and the plaintiff afterwards, as administrator, found the note with other papers of the deceased in the vault of a bank where he had left them. handwriting of the payee within note for one year." dollars, August 21, 1852."

The note was indorsed in the as follows:-"Interest paid on "Paid on the within note fifty

The plaintiff relies on a confirmation of the contract made during minority by a partial payment made by the defendant after she became of full age. And he claims that the simple indorsement as above establishes the fact of such payment.

It was the exclusive province of the Superior Court to consider the evidence and find the issuable fact. We have

Catlin v. Haddox.

however only certain evidential facts, which may furnish some basis for inference in regard to the main fact; but we do not regard the former as the equivalent of the latter. The evidence falls below that of an ordinary admission on the part of the defendant. It consists wholly of a written memorandum by the party claiming the benefit of it. Under our statute, (if not otherwise,) it was legitimate evidence to be considered, but it is incomplete and must be supplemented by other inferences, more or less probable, but by no means necessary, in order to establish the fact relied upon. For instance, after assuming the truth of the indorsement, we do not know when the interest was paidwhether in advance or after due; if before due, it was a payment during minority. In order to give it any force therefore we must presume that the payment was not made till due. Then again, it is not stated by whom the payment was made. It might have been by the husband without the wife's direction, in which case it would be of no account; and here again it has to be presumed that no one would pay but the wife.

Nothing at all is disclosed by the record as to the actual transaction that occasioned the indorsements in questionwhich ordinarily must have a controlling signification as to the intention of the party. In view of the authorities that have gone farthest in the direction of facilitating the confirmation of contracts by infants when of full age, there ought at least to be some act on the part of the maker of the note clearly admitting an actual willingness and intention to pay the whole amount. Stokes v. Brown, 4 Chand. (Wis.,) 39; Little v. Duncan, 9 Rich. Law (S. C.,) 55. But we have found no case where an infant's contract has been held to be validated upon such meagre evidence as this record presents, founded as it is upon the inference to be drawn from the mere fact that the party holding the note and interested in the confirmation had for some unknown reason indorsed on it a part payment.

If then we assume the law to be that a part payment of a note by an infant after full age may be a ratification of

Catlin v. Haddox.

the whole so as to make the contract binding, we should hesitate to accept the evidence in this case as a sufficient confirmation.

But to adopt the above as the rule of law in this state would require us to overrule or essentially modify the legal propositions deliberately adopted by this court in two well considered cases, which have hitherto been accepted as the law of this state.

In Benham v. Bishop, 9 Conn., 330, which was an action on a note made by an infant, where the plaintiff claimed a ratification by certain facts peculiar to that case, DAGGETT, J., giving the opinion, says, (p. 333):-"It is very clear from all the authorities that the note of an infant cannot be ratified by merely acknowledging that he made it or that it is due. Unlike an admission of a debt barred by the statute of limitations, which has been held to remove the bar and authorize a recovery, in the case of the note or bond of a minor there must be a promise to pay when of full age." And he cites several authorities in support of the proposition.

So in the later case of Wilcox v. Roath, 12 Conn., 550, in an action of the same kind where a ratification by the defendant was pleaded, BISSELL, J., in giving the opinion of the court says, upon the question what amounts to a ratification:-"An attempt has been made to show an analogy between this case and cases arising under the statute of limitations; and it has been contended that the evidence which would take a case out of that statute is sufficient to prove the ratification of a contract made by an infant. Such however is not the rule. The cases are not analagous. They stand on different grounds and are governed by different principles. In the one case the debt continues from the time it was contracted. A new promise merely rebuts the presumption created by the statute, and the plaintiff recovers, not on the ground of any new right of action, but that the statute does not bar the old one. In the other, there never was any legal right capable of being enforced. And in case of a promise after the infant becomes VOL. XLIX-63.

Catlin v. Haddox.

of age, he takes upon himself a new liability, founded, indeed, on a moral obligation existing before. Accordingly it is well settled that a bare acknowledgment is sufficient to take a case out of the statute of limitations. But in regard to the contract of an infant, it has been repeatedly adjudged that there must be an express promise to pay the debt after he arrives at full age; otherwise there is no ratification." And a large number of authorities are cited in support of this reasoning.

There are authorities from other jurisdictions that deny the propositions contained in the opinions we have cited, and that hold substantially that any words or acts after full age which would suffice to revive a promise barred by the statute of limitations would confirm a contract by an infant. See Stokes v. Brown and Little v. Duncan, supra.

Yet we believe there is a decided preponderance of legal authority in substantial accord with those citations. In attempting to draw the line between what amounts to a ratification and what falls short of it under the diverse circumstances of the different cases, some confusion has been introduced into the discussion, but much of the conflict is only apparent, and can be reconciled by keeping in mind the distinctions founded on the nature of the contract or the circumstances or conduct of the defendant relative to the subject matter or the consideration.

In 2 Greenleaf's Evidence, § 367, the author says:"There is however a distinction between these acts and words which are necessary to ratify an executory contract, and those which are sufficient to ratify an executed contract. In the latter case any act amounting to an explicit acknowledgment of liability will operate as a ratification; as in the case of a purchase of land or goods, if, after coming of age he continues to hold the property and treat it as his own. But in order to ratify an executory agreement made during infancy, there must be not only an acknowledgment of liability, but an express confirmation or new promise voluntarily and deliberately made by the infant upon his coming of age, and with knowledge that he is not legally

Catlin v. Haddox.

liable. An explicit acknowledgment of indebtedness, whether in terms or by a partial payment, is not alone sufficient, for he may refuse to pay a debt which he admits to be due." And the numerous cases sustaining this doctrine are referred to in the notes.

In Robbins v. Eaton, 10 N. Hamp., 561, there is an interesting discussion of this subject, and the court say:"Payment of part of a note is no ratification of the whole, because the infant may admit only an indebtedness to that extent. The ratification should be equivalent to a new contract. Therefore an express promise as to the whole debt is necessary. There are numerous authorities to this effect, but these are cases where notes were given for articles which had been used or consumed prior to the infant's becoming of age. Where the matter constituting the consideration of the note is not in existence when the infant becomes of age, or is wholly beyond his control, there is nothing upon which an implied promise can arise, and an express promise to pay the debt can alone render the infant liable. * But where the consideration of the note is still in existence, in as perfect a state after the infant becomes of age as before, and is subject to his control, he may so deal with the articles or property forming such consideration as to raise an implied promise of payment."

In Boody v. McKinney, 10 Shepley, 517, SHEpley, J., makes an able analysis of the cases on this general subject and classifies them according to the different situations and circumstances in which the infant is placed in regard to the subject matter of his contract, and the distinctions made will be found to vindicate the result we have reached in the case at bar.

In 7 Wait's Actions and Defences, § 7, p. 140, it is said: "A voidable contract of an infant cannot after his coming of age be ratified by a mere acknowledgment of the debt. Such at least is the rule applicable to his executory contracts." And Dunlap v. Hales, 2 Jones Law, (N. C.,) 381, Conklin v. Osborn, 7 Ind., 553, and Bank of Silver Creek v. Browning, 16 Abb. Prac. R., 272, which are referred to, abundantly sustain the citation from the text.