tion.249 Thus, where it appears that the grantor in a deed was a hard drinker, and that his habits of intoxication had affected his health and frequently rendered him unfit for business, but that he had periods of sobriety when he was competent for business, and the evidence fails to show that he was intoxicated at the time the conveyance was made, it is not sufficient to avoid the transaction.250 In a case before the Supreme Court of the United States, it was said of the grantor in question that he "was often intoxicated, and when in that condition was incapacitated to transact business. But for many years prior to his death there were intervals, some of them quite long, during which he avoided excessive indulgence in strong drink. His capacity, when sober, to transact business is abundantly shown. The vital inquiry is as to his capacity, not when he was intoxicated, but when the deeds were executed. The evidence leaves no room to doubt that, at those particular dates, he fully comprehended the character of those instruments. If it satisfactorily appeared that, from habitual dissipation or other cause, he was in such enfeebled condition of mind or body, immediately before or immediately after their execution, as to render him incompetent to transact business, the presumption might arise that he was unable, at the time, to understand what he was doing, and thus the burden of proof as to his capacity, at those particular dates, to dispose of his property, would be imposed upon the grantee."

" 251

But on the other hand, where it is shown that the party executing a mortgage was rendered imbecile by habitual drunkenness, and reduced to a condition verging on insanity, by the practices of the mortgagee, who had obtained complete control over him, and the mortgagee is not able to show that he had given any valid consideration for the mortgage, a foreclosure and sale of the premises will be perpetually enjoined.252 And in other cases, especially

249 Girault v. Feucht, 120 La. 1070, 46 South. 26; Ritter's Appeal, 59 Pa. 9; Coombe's Ex'r v. Carthew, 59 N. J. q. 638, 43 Atl. 1057; Morris v. Nixon, 7 Humph. (Tenn.) 579.

250 Ralston v. Turpin (C. C.) 25 Fed. 7.

251 Ralston v. Turpin, 129 U. S. 663, 9 Sup. Ct. 420, 32 L. Ed. 747. 252 Van Horn v. Keenan, 28 Ill. 445.

254

where the elements of fraud or undue influence are present, relief has been given to a contracting party whose faculties are shown to have been much impaired by habitual intemperance,253 or who appears to be characterized by weakness of mind caused by habitual drunkenness,2 or who was induced, by misrepresentations, to execute a deed while in a weakened condition after a protracted debauch.255 And in a case in Kentucky it is said that a person of known intemperate habits and with a disposition to sell or trade anything he has to get more liquor when drinking need not be wholly under the influence of liquor to avoid a contract made under circumstances indicating that undue advantage was taken of him, but it is sufficient if his weakness and his necessities are taken advantage of, and a contract obtained from him which no man in his sound and sober senses would have made.2 256

§ 281. Voidability of Contract; Ratification or Disaffirmance.-Intoxication at the time of the making of a contract does not create such a legal incapacity as will render the contract wholly void, and although the party who was intoxicated may rescind the contract on that ground, after becoming sober, yet the contract is merely voidable at his election and may be either affirmed or disaffirmed.257 It may become valid and legally binding by ratification if he gives his express assent to it after recovering from the intoxication.258 And moreover, if he desires to rescind or repudiate it, he must act with reasonable promptness after regaining his senses and coming to a realization of what he

253 Freeman v. Dwiggins, 55 N. C. 162.

254 Marshall v. Billingsly, 7 Ind. 250.

255 Cornet v. Cornet, 248 Mo. 184, 154 S. W. 121. But compare Jones v. Hughes (Iowa) 110 N. W. 900.

256 Matthis v. O'Brien, 137 Ky. 651, 126 S. W. 156.

257 Oakley v. Shelley, 129 Ala. 467, 29 South. 385; Snead v. Scott, 182 Ala. 97, 62 South. 36; Sellers v. Knight, 185 Ala. 96, 64 South. 329; Harlan v. Brown, 4 Ind. App. 319, 30 N. E. 928; Lacy v. Mann, 59 Kan. 777, 53 Pac. 754; Matz v. Martinson, 127 Minn. 262, 149 N. W. 370, L. R. A. 1915B, 1121.

258 Matthews v. Baxter, L. R. 8 Exch. 132; Strickland v. Parlin & Orendorf Co., 118 Ga. 213, 44 S. E. 997; Wells v. Houston, 23 Tex. Civ. App. 629, 57 S. W. 584; Arnold v. Hickman, 6 Munf. (Va.) 15.

has done,259 and if he continues to act upon the contract for any considerable time after becoming sober, it will be considered as an exercise of his election in favor of affirming the contract instead of repudiating it,260 and mere acquiescence for a long term of years in respect to a conveyance made while in a state of intoxication will preclude the granting of any relief on that ground, certainly as against a third person taking title to the property in good faith and making improvements.201

§ 282. Restoration of Consideration.-As a general rule, one seeking the rescission or cancellation of a contract or conveyance on the ground of his intoxication at the time it was made must restore or offer to restore whatever he has received by way of consideration under it,262 and if the situation of affairs is such that it is impossible to restore both parties to their former situation, this may be ground in equity for refusing to grant any relief on account of incapacity produced by intoxication.263 In a case where the grantee in a deed given without consideration was aware that the grantor was too much intoxicated at the time to have any intelligent understanding of what he was doing, but had not in any way induced or connived at the intoxication, and where his motive in taking the deed was not personal gain, but to save the property for the grantor's family, as otherwise it would probably have been squandered, it was held, upon setting aside the conveyance in equity, that taxes paid by the grantee should be ordered repaid to him with interest, and that the complainant should have no costs. 264 On the other hand, where the evidence

259 Kelly v. Louisville & N. R. Co., 154 Ala. 573, 45 South. 906; J. I. Case Threshing Machine Co. v. Meyers, 78 Neb. 685, 111 N. W. 602, 9 L. R. A. (N. S.) 970; Fowler v. Meadow Brook Water Co., 208 Pa. 473, 57 Atl. 959.

260 Moore v. Reed, 36 N. C. 419.

261 Wright v. Fisher, 65 Mich. 275, 32 N. W. 605, 8 Am. St. Rep. 886.

262 Joest v. Williams, 42 Ind. 565, 13 Am. Rep. 377; Kyle v. Powell, 96 Mo. 526, 10 S. W. 166; Kelly v. Louisville & N. R. Co., 154 Ala. 573, 45 South, 906.

263 Menkins v. Lightner, 18 Ill. 282.

264 Warnock v. Campbell, 25 N. J. Eq. 485.

showed that the grantor was an habitual drunkard, was drunk when he executed the deed, and was incapable of transacting business; that the grantee, a practising attorney, had managed the affairs of the grantor's mother for some years, and that he took advantage of the confidence reposed in him by the grantor to secure the property for very much less than its fair value, it was held that the deed should be set aside without requiring a return of the money paid to the grantor at the time it was executed.265

265 Hardy v. Dyas, 203 Ill. 211, 67 N. E. 852.

CHAPTER XII

INFANCY

283. Capacity of Infants to Contract.

284. Validity of Infants' Contracts in General.

285. Deeds, Mortgages, and Other Transfers of Real Estate. 286. Contracts for Services.

287. Same; Recovery for Services on Avoidance of Contract. 288. Infants Engaging in Business.

289. Infants as Members of Partnerships.

292.

Purchase of Corporate Stock.

293. Appointment of Agent or Attorney.

294. Contracts of Release, Compromise, or Settlement.

295. Policies of Life Insurance.

300.

301.

302.

303.

298. Same; Education.

299. Same; Services of Attorneys at Law.

Contracts Made for Infants by Third Parties.

Estoppel Against Infant.

Same; Misrepresentations as to Age.

Ratification.

306.

307.

308.

Same; Adult Contracting with Infant is -Bound.

Time for Rescinding or Disaffirming; During Minority.
Same; After Attaining Majority.

309. Partial Avoidance or Disaffirmance.

310.

Restoration of Property or Consideration Received. 311. Same; Property Lost, Sold, or Dissipated. 312. Effect of Avoidance.

§ 283. Capacity of Infants to Contract.-The commonlaw inability of infants to bind themselves by contracts is not founded upon any supposed mental incapacity, but upon the theory that, from lack of experience and immaturity, they do not possess the prudence and good judgment necessary to guard and advance their own interests and protect themselves against fraud and imposition. This presumption is often inconsistent with the actual fact. But an arbitrary point of time must be chosen, and the rule is wholesome in its general operation. The law makes no distinction between contracts made by an infant of tender