Further subjects of inquiry. Capacity of parties. CHAPTER III. Capacity of Parties. IN the topics which we have hitherto discussed we have dealt with the primary elements of contract. The parties must be brought together by offer and acceptance, and they must make an agreement which the courts will regard as a legal transaction either by reason of its form, or because of the presence of consideration. But such a transaction may take place between parties, one or both of whom are under some disability for making a valid contract: it is therefore necessary to deal with these disabilities: in other words with the capacity of parties. Certain persons are by law incapable, wholly or in How it may part, of binding themselves by a promise, or of enforcing a promise made to them. And this incapacity may arise from the following causes: be affected. (1) Political or professional status. (2) Youth, which, until the age of 21 years, is supposed to imply an immaturity of judgment needing the protection of the law. security to his creditor, or a principal to his surety, on a pre-existing debt, without any new consideration. "No case can be found in which a man's own debt has been ruled to be an insufficient consideration between him and his creditor, for a mortgage or other security received by the latter from the debtor." Turner v. McFee, 61 Ala. 468; Paine v. Benton, 32 Wis. 491; Duncan v. Miller, 61 Iowa, 223; Williams v. Silliman, 74 Tex. 626. So the transfer of a negotiable instrument as security for a pre-existing debt is on a sufficient consideration as between the parties; whether it is as to third parties the American cases are not agreed. Bay v. Coddington, 20 Johns. (N. Y.) 637; Oates v. Nat. Bk., 100 U. S. 239. (3) Artificiality of construction, such as that of corporations, which, being given a personality by law, take it upon such terms as the law imposes. (4) The permanent or temporary mental aberration of lunacy or drunkenness. (5) Until the 1st of January 1883 marriage effected a merger of the contractual capacity of the wife in that of her husband, subject to certain exceptions. The Married *Woman's Property Acts of 1882 and 1893 have greatly changed the law in this respect. [*107] § 1. Political or professional status. (1) Political status. An alien has the contractual capacity of a natural-born An alien. British subject, except that he cannot acquire property in a British ship.1 enemy. O'Mealey v. Wilson, Camp. 431 An alien enemy, or British subject adhering to the An alien king's enemies," cannot, without license from the crown, make any fresh contract or enforce any existing contract during the continuance of hostilities; but his rights as to contracts made before the commencement of war are suspended, not annulled, and can be enforced (subject to the effect of the Statute of Limitations) upon the conclusion of peace.2 Foreign states and sovereigns and their representatives, Foreign the officials and household of their representatives, are not reigns. a It does not seem to be clearly settled that anything short of residence in a hostile country for trading purposes constitutes adherence to the king's enemies. The case of Roberts v. Hardy, 3 M. & S. 533, exhibits the reluctance of the courts to draw conclusions from the mere fact that a man was resident in a hostile country when it was possible for him to have removed. 1 See Stimson, Am. St. Law, §§ 102, 5286, 6010-19; U. S. Rev. Stat., § 4131, and index, title " Aliens;" Taylor v. Carpenter, 3 Story (U. S.), 458. 2 United States v. Grossmayer, 9 Wall. (U. S.) 72, H. & W. 215; Kershaw v. Kelsey, 100 Mass. 561; Griswold v. Waddington, 16 Johns. (N. Y.) 438. There is a possible exception in the case of contracts for necessaries. Crawford v. The William Penn, 3 Wash. C. C. (U. S.) 484. K sove Taylor ▼. 487. subject to the jurisdiction of the courts of this country unless they submit themselves to it. Their contracts cannot therefore be enforced against them unless they so choose, although they are capable of enforcing them. This immunity extends to a British subject accredited to Great Q. B. D. 36. Britain by a foreign state.1 Macartney v.Garbutt, 24 Mighell v. of Johore, A recent case illustrates the rule. A foreign sovereign [1894]1QB. residing in this country as a private person, made a promise of marriage under an assumed name. He did not thereby subject himself to the jurisdiction of our courts. (C.A.) 149. Felon undergoing sentence. 83 & 34 Vict. A person convicted of treason or felony cannot, during the continuance of his conviction, make a valid contract; nor can he enforce contracts made previous to conviction: but these may be enforced by an administrator appointed c. 23. §§ 8, 9, for the purpose by the crown.2 10. Barrister. Kennedy v. Physician. 49 & 50 Vict. c. 48. § 6. *A barrister cannot sue for fees due to him for [*108] services rendered in the ordinary course of his professional duties, whether the action be framed as arising upon an implied contract to pay for services rendered on request, or upon an express contract to pay a certain sum for the conduct of a particular business. A physician, until the year 1858, was so far in the position of a barrister that the rendering of services on request raised no implied promise to pay for them, though the patient might bind himself by express contract. The Act 21 & 22 Vict. c. 90. § 31 enabled every physician to sue on such an implied contract, subject to the right of any college of physicians to make by-laws to forbid the exercise. of this privilege by their fellows. And this is re-enacted in substance by the Medical Act 1886.3 1 King of Prussia v. Kuepper's Adm'r, 22 Mo. 550. 2 Not so generally in the United States. Estate of Nerac, 35 Cal. 392. 8 In the United States lawyers and physicians who are duly licensed are under no such disability. Vilas v. Downer, 21 Vt. 419. § 2. Infants.1 The rights and liabilities of infants under contracts (2) Infants. entered into by them during infancy rest upon common law rules which have been materially affected by statute. I will first state the common law upon the subject. rule of Common law treated an infant's contract as being void- General able at his option, either before or after the attainment of common his majority. But the rule was thus limited: law. Infant's voidable. (1) The contract ceased to be voidable if ratified upon contract the attainment of 21 years of age. Pollock on pp. 53-60, Ratifi Contracts, 5th ed. (2) The contract was not voidable if it were for necessaries, or, in certain cases, if it were for the infant's benefit. (1) Ratification, and the Infants' Relief Act. Sir F. Pollock, in an exhaustive argument, shows clearly that by the rules of common law the contract of an infant was not void but voidable at his option even though it were not for the infant's benefit. Being so voidable, the infant might (apart from statutory restrictions) affirm and ratify his contract when he attains his majority, and thus assume the rights and liabilities arising from it. It may 256. 1 The age of majority for women is fixed at eighteen in some States. Stimson, Am. St. Law, § 6601. Majority is reached on the first minute of the day preceding the twenty-first birthday. Bardwell v. Purrington, 107 Mass. 419; Hamlin v. Stevenson, 4 Dana (Ky.), 597. Some States provide that emancipation may hasten the age of majority. Stimson, Am. St. Law, § 6606. 2 In the United States it has been held that an infant's contracts fall into three classes: (1) The contract for the appointment of an agent, which is void; (2) the contract for necessaries, which is binding; (3) all other contracts, which are voidable at his election. Fetrow v. Wiseman, 40 Ind. 148. The first proposition is sustained by some authorities in general terms. Trueblood v. Trueblood, 8 Ind. 195, H. & W. 218. But it is confined by others to the appointment of an attorney in fact by a formal power of attorney. Hastings v. Dollarhide, 24 Cal. 195; Hardy v. Waters, 38 Me. 450; Huffcut on Agency, $ 15. The matter is sometimes regulated by statute. Stimson, Am. St. Law, § 6602. An unexecuted contract of marriage may be avoided. Rush v. Wick, 31 Oh. St. 521. So also an executory contract for necessaries. Gregory v. Lee, 64 Conn. 407. cation. Williams v. be well to *remind the reader that such a ratification [*109] is, or was, an illustration of the limited class of cases Ante, p. 103. in which a past consideration has been allowed to support a subsequent promise. Ratification of two kinds. valid until Some contracts were invalid unless ratified, others valid unless disaffirmed within a reasonable time. It would seem that where an infant acquired an interest in permanent property to which obligations attach, or enContracts tered into a contract which involves continuous rights rescinded. and duties, benefits and liabilities, and took some benefit under the contract, he would be bound unless he expressly disclaimed the contract. On the other hand, a promise to perform some isolated act, or a contract wholly executory, would not be binding upon the infant unless he expressly ratified it upon coming of age. Interests in realty, Rolle, Abr. 781. in corpo rate property, Evelyn v. Chichester, 8 Burr. 1717. N. W. R. 5 Ex. 114. Illustrations of contracts requiring a special disclaimer to avoid them - valid unless rescinded may be found in the following cases. These do not appear to be affected by recent legislation. An infant lessee who occupies until majority is liable for arrears of rent which accrued during his minority. Shareholders who became possessed of their shares during infancy are liable for calls which accrued while they were infants. 'They have been treated therefore as persons in a different situation from mere contractors, for then they would have been exempt: but in truth, they are purchasers who have acquired an interest, not in a mere chattel, but in a subject of a permanent nature, either by contract with the company, or purchase or devolution from those who have contracted, and with certain obligations attached to it which they were bound to discharge, and have been thereby placed in a situation analogous to an infant purchaser of real estate who has taken possession, and thereby becomes liable to all the obligations attached to the estate; for instance, to pay rent in the case of a lease rendering rent, and to pay a fine due on the admission in the case of a copyhold to which an infant has been admitted, unless they have elected to waive or disagree the purchase altogether, either during infancy or after full age, at either of which times it is competent for an infant to do so.' |