tion should be treated as a finally decisive element, and a basis for an unvarying rule of law. So far as can be seen he would be quite sufficiently protected by a doctrine which should simply declare that he is not bound by such a contract, unless it is proved by satisfactory evidence, that he could not have obtained certain necessaries in any other way than by making it, and that it was on the whole not inequitable or unreasonable.

6. Distinction, in respect to the right of avoidance, between executory and executed contracts of service-In Massachusetts and Michigan it has been laid down that a contract to furnish an infant with necessaries, in return for his services during a certain period, cannot be repudiated by him, after it has been executed, unless it is shewn that he was in some way imposed upon by the employer'. But apparently the decisions in the cases cited would

If an infant of the age of fourteen years enters into an agreement to labour until he shall come of age, in consideration of being furnished with his board, clothing and education, and he is not overreached, and the agreement is not so unreasonable as to raise any suspicion of fraud, and it is sanctioned by his guardian, and is fully performed on both sides, he cannot, after attaining his majority, maintain a quantum meruit for his services, merely on the ground, that in the event which has happened, his services were worth more than the stipulated compensation. Stone v. Dennison (1832) 13 Pick. 1 (see further as to this case in § 981, note 3).

In Squier v. Hydliff (1861) Mich. 274, the contract was exclusively for necessaries, and it was held, that evidence should have been admitted, which tended to prove, that the labour was performed under and with knowledge of an agreement between the defendant and an older brother of the minor (whose parents were dead), in pursuance of which and in payment for the labour the minor had been sent to school, clothed, his washing and mending done, etc. The jury might have found from such evidence that the minor had given his assent to the agreement.

In Spicer v. Earl (1879) 41 Mich. 191, 32 Am. Rep. 152, the same doctrine was applied in an action brought while the plaintiff was still a minor. The court refused to accept the special contention, that the fact of the contract's being only partially for necessaries was sufficient to distinguish the case from the one last cited. Upon the more general question the court expressed its views as follows: "It is a harsh rule which permits the infant to repudiate his contract after he has executed it, where no advantage has been taken of him, and where the party dealing with him was not aware of his infancy. Where only the infant's services are in question, the rule should not be extended beyond what is absolutely necessary to proper protection; it should not be allowed to become a trap for others, by means of which the infant may perpetuate frauds. If a contract for service is apparently fair and reasonable under the circumstances, the infant who has performed it should be held to its terms, and if he attempts to repudiate it, the attention of the jury should be directed to the question whether or not an unfair advantage has been taken of him, instead of their being required to find a subsequent affirmance. So long as the employer who is

have been the same, if the contracts involved had been executory. See preceding section.

In Massachusetts, however, the doctrine has been distinctly recognized, that a merely beneficial contract, although it may be subject to avoidance by the infant as long as it remains executory, cannot be repudiated after it has been executed.

In any jurisdiction it would doubtless be held, as it has been held in Massachusetts, that a contract of service which is neither for necessaries nor beneficial may be avoided by the infant, after he has attained his majority, although it has been executed, and although he cannot put the employer in statu quo, or return the consideration received'.

7. Effect of the infant's avoidance of the contract. The effect of the infant's disaffirmance of a voidable contract of service is to nullify and render the contract void ab initio, not prospectively. "It is a total, not a partial destruction. If it were otherwise, the infant might and practically would be ruined by a part

acting in good faith is not notified of any dissent, he has a right to understand that his responsibility is measured by his agreement. On the other hand, the infant may abandon the service when he pleases, or stipulate for any new terms he may see fit to demand and can procure assent to. He is bound by the terms of the contract so far as he executes it without dissent, but no further."

2 An infant, in consideration of an outfit to enable him to go to California, agreed, with the assent of his father, to give the party furnishing the outfit one-third of all the avails of his labour during his absence, which he afterwards sent accordingly. The jury having found that the agreement was fairly made, and for a reasonable consideration, and beneficial to the infant, it was held, that he could not, in an action brought after he reached full age, rescind the agreement and recover back the amount so sent, deducting the amount of the outfit and any other money expended for him by the other party in pursuance of the agreement. Breed v. Judd (1854) 1 Gray, 455. The court said: "The plaintiff was desirous of engaging in this new field of labour. To carry out this purpose, certain necessary expenses of outfit and voyage must be incurred. Not having means of his own, he enters into an arrangement with the defendants to furnish them, upon a special agreement, indeed, but reasonable and beneficial in its terms. Viewing the contract in this light, or as an agreement for the services of the plaintiff for a limited time, to be repaid by the advancement and by retaining also two thirds of the fruits of his labour, it would, if fairly made and fully executed, be within the principles, if not within the direct authority, of Stone v. Dennison, 13 Pick. 1."

Dube v. Beaudry (1890) 150 Mass. 448, 6 L.R.A. 146, 23 N.E. 222 (contract to work for a creditor of the infant's deceased father, and apply half the wages earned to the liquidation of the debt).

execution of the contract. A partial or prospective avoidance would afford no protection at all. By the avoidance the contract is annihilated, and the parties are left to their legal rights and remedies, just as if there had never been any contract at all””.

Under no circumstances does his abandonment of a voidable contract render him subject to an action for the damages caused thereby to his employer. The plea of infancy is a bar to such an action even though he may have received the consideration of the contract, and does not offer to restore it.

In England it has been held that no action can be maintained by a master against a third person who induces an infant to abandon performance of an essentially non-beneficial contract of service. On the other hand, the position has been taken in two American cases that an infant's voidable contract of service should be deemed, so far as third persons are concerned, to be in force for an indefinite period, and that the master is consequently entitled to maintain an action for damages against anyone who entices away the infant from his employment'. These antagonistic doctrines, it will be observed, represent opposing views as to one particular phase of the general question, whether it is legally wrongful to induce a person to abandon a contractual relation from which he has a right to withdraw at any time. This is a question which has recently been much discussed with reference

1 Vent v. Osgood (1837) 19 Pick. 572.

"Any act done by the minor, clearly indicative of his intention not to be bound by it (the contract) would avoid it, and from the time of the avoidance it becomes a nullity for all purposes." Campbell v. Cooper (1856) 34 N.H. 49.

2

Craighead v. Wells (1855) 21 Mo. 404 (agreement to do work in another state in consideration of an outfit furnished by the employer).

De Francesco v. Barnum (1890) 45 Ch. Div. 165 (see § 981, note 9).

Peters v. Lord (1847) 18 Conn. 337; Campbell v. Cooper (1856) 34 N.H. 49. In the latter case, the court used the following language with respect to the contract under review: "Such a contract on the part of the infant is not void except at his election. Until avoided by him it is valid as between the parties and as to third persons, in the same manner as if made by an adult. The minor having entered upon its fulfilment, thereby created the relation of master and servant between the plaintiff and himself; and until he chose to disaffirm the contract the master may properly be said to have a legal right to the services rendered."

to the liability of the members of labour organizations for procuring the discharge of employees obnoxious to them. In the present connection it is sufficient to remark that, under either doctrine, the effect of an actual avoidance of the contract by the infant is to deprive the master of all claim to future services, and to incapacitate him from maintaining an action against a third person who subsequently receives the infant into his employment'.

8. Ratification of voidable contract by infant after attaining majority. -In any jurisdiction where the matter is not regulated by some statutory provision which declares that an infant's ratification of his contracts must be in writing', or which absolutely debars him from ratifying a promise made during his nonage, the fact that the infant continued the performence of a voidable contract for a longer period after he reached full age than was reasonably necessary to enable him to decide what to do will ordinarily be regarded as conclusive evidence that he had elected to affirm and be bound by it.

5 See cases cited in the last note.

1 See 1 Parsons, Contr. p. *329.

In Birkin v. Forth (1875) 33 L.T.N.S. 532 (§ 4, note 8, ante), it was held that a ratification in writing, in accordance with 9 Geo. 4, ch. 14, § 5, could not be inferred from the infant's continuing in the service after he came of age, and then giving notice of his intention to quit the service. The case cited in support of this latter point was Harmer v. Killing (1800) 3 Esp. 102, where it was held that no ratification can be implied from a promise given after age, unless the infant knows that he was discharged by his non-age.

2 In England it has been enacted that "no action shall be brought whereby to charge any person upon any promise made after full age to pay any debt contracted during infancy, or upon any ratification made after full age of any promise or contract made during infancy, whether there shall or shall not be any new consideration for such promise or ratification after full age." Infants Relief Act, 1874, chap. 62, s. 2.

Cornwall v. Hawkins (1871) 36 L.T.N.S. 607, 41 L.J. Ch. 435 (injunction granted to restrain a servant, who had continued in his employment eighteen months after reaching full age, from violating a stipulation not to set up business on his own account within a certain distance of his master's house); Forsyth v. Hastings (1855) 27 Vt. 646 (servant who had abandoned an entire contract without sufficient cause a month after reaching full age,-held not to be entitled to recover the value of that part of his services which was rendered during his minority); Spicer v. Earl (1879) 41 Mich. 191, 32 Am. Rep. 152 (contract deemed to have been affirmed in

9. Contracts made by infants as employers. The general rule as to the obligatory character of an infant's contracts for necessaries involves the corollary that a contract by him for the hire of a servant suitable to his station in life is binding upon him, to the extent at least of rendering him liable for the compensation earned by the servant'. In cases where that rule is not controlling the effect of such a contract is somewhat obscure.

Upon the analogy of the doctrine applied in respect to other contracts, it would seem that the contract of an infant for the hire of a servant, should, if not clearly prejudicial, be regarded as being merely voidable at his own option, and that, until it has actually been disaffirmed by him, it should be deemed to subsist for all purposes both as between himself and the servant, and with reference to third persons. This theory as to the juridical situation would involve the following consequences-that he would be liable for any wages earned while he treated the contract as valid, at all events for such wages as were already due and payable at the end of the last of the periods with reference to which their amount was measured; that he would be entitled to maintain an action for damages against a third person who might interfere wrongfully with the contract by enticing away the servant or otherwise; and that he would be liable for such torts as might be committed by the servant in the course of his employment. There is, however, a singular dearth of judicial authority on the questions thus indicated, and in the only case which has come to the notice of the present writer, the validity and effect of an ordinary contract by an infant for the hire of a servant has been treated as being determinable not by the general

respect to the amount of the stipulated wages, the infant having gone on working for two months after he became of age).

"A servant in livery may be allowed to a rich infant, because such attendance is commonly appropriated to persons in his rank of life." Chapple v. Cooper (1844) 13 M. & W. 252; per Parke, B., arguendo. The actual point decided in this case was that an infant widow is bound by her contract for work and labour done in furnishing the funeral of her husband, who has left no property to be administered. Such a contract was regarded as being for her personal benefit and in a broad sense reasonably necessary.

In Hands v. Slaney (1800) 8 T.R. 578, Lord Kenyon refused to say that it was not necessary for a captain in the army to have a servant.