II

Ch. 2) THE PARTIES T0 xrua RELATION 81\

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CHAPTER 11

THE PARTIES TO THE RELATION

ii-i._CALEY v. MORGAN.

(Supreme Court of Indiana. 1887. 114 Ind. 350, 16 N. E. 790.)

Action by Caley to quiet title to forty acres of land of which he wasin possession and claimed to be the owner. Cross-complaint by Morgansetting up claim of title and demanding that it be quieted. Caleyclaimed by conveyance direct from one Lucas; Morgan, upon a sheriff's sale antedating the conveyance to Caley, upon a judgment enteredby confession by Lucas in favor of one Hendrix. This judgment wasassigned to Morgan by one Milligan, acting under a power of attorney

from :Hend_rix.NIBLACK, J.‘ [After stating the facts and holding that the judgment by confession was effective and valid 2]

* * * It is next claimed that authority to assign a judgment cannot be conferred by a powerof attorney, 'and that, at all events, the power of attorney from Hendrix to Milligan was inoperative, because it was not_recorded in somerecord in the recorder’s office of Huntington county. Ahy personcapable of transacting his own business may appoint an agent to actin his behalf in all the ordinary affairs of life. In many cases the appointment may be by 'parol only, but may, in any case, be in writing.For some purposes the appointment must be by a letter or power ofattorney, which makes the agent an attorneyin fact. A person thusappointed, however, is none the less the mere agent of the person appointing him. Story, Ag. p. 2, § 3: Ewell’s Evans, Ag. 1; Roehl v.Haumesser, 114 Ind. 311, 15 N. E. 345, (No. 13,062.) A power of attorney is valid as between the parties, and for all ordinary ‘purposes,without being recorded. It is only when notice to third parties is requsite that the recording of a power of attorney becomes material.There was, consequently, nothing in the facts, as the court found them,which restrained Hendrix from constituting Milligan his attorney infact to sell and assign his judgment against Lucas, or which invalidated Milligan’s assignment of the judgment to Morgan. * * *

The judgment is affirmed, with costs.

1 Part of the opinion is omitted.

32 THE RELATION (Part 1

\ .

DAVIS v. LANE. _ '

(Superior Court of Judicature of New Hampshire, 1839. 10 N. H. 156.)

Foss, plaintiff’s intestate held a note for $50 against Lane. Foss’swife had been his general agent, transacting all his business. On theday of his death. when he was wholly senseless and beyond hope ofrecovery, she delivered this note to one Prescott, to whom deceasedowed $46. Lane paid the note to Pres-cott, and the administrator nowsues to recover the amount of the note. . ‘

PARKER, C. ].2* * * There is no pretence that a wife, as

such, has any authority to dispose of the husband's goods, orladjusthis affairs, by reason of his incapacity to transact business. * * *

An authority to do an act, for, and in the name of. another, presupposes a power in the individual to do the act himself, if present.The act to be done is not the act of the agent, but the act of the principal; and the agent can do no act in the name of the ‘principal whichthe principal might not himself do, if he were personally present. Theprincipal is present by his representative, and the making or executionof the contract, or acknowledgment of a deed, is his act, or acknowledginent.But it would be preposterous, where the power is in its nature revocable, to hold that the principal was, in contemplation of law, ‘present, making a contract, or acknowledging a deed, when he was in factlying insensible upon his death bed, and this fact well known to thosewho undertook to act with and for him. The act done by the agent, under a revocable power, implies the existence of volition on the part ofthe principal. He makes the contract—he does‘ the act. It is donethrough the more active instrumentality of another, but the latter represents his person, and uses his name. * * *

MacFARLAND v. HEIM.(Supreme Court of Missouri, 1894. 127 ‘Mo. 327, 29 S. W. 1030, 48 Am.'St.

RED. 629.)

Action against a guarantor of a lease of land belonging to Mrs.MacFa1-land, and described “as her general estate.” Her husband hadacted for her in making out the lease, and he and a janitor, Harding,for her had secured Heim’s signature as guarantor of the lease. ]udgment for defendant.

S1-11~:Rwoo1), J.“ [After passing upon the consideration for the guaranty and holding there had been no assumption by Heim of any legalliability 1]

* * - * But the trial court erred in holding and instruct

2 The rest of the opinion is on page 179. .

8 Part of opinion is omitted.

Ch. 2) THE PARTIES TO THE nannrox 33

ing that Mrs. MacFar1and (not being seised of an equitable separateestate) could have any agent, either in Harding or in her husband, tobind her by any act of theirs, o_r that she could ratify their void acts.A void act is incapable of ratification. It is impossible to understandwhat is meant by the words “general estate,” of which it is said Mrs.MacFarland was seised. It suffices, for the ‘present purpose, that it isstated in the record that it was not her “equitable separate estate.”

It is among the fundamentals of the common law that a marriedwoman is incapable of contracting, and her supposed contracts arevoid. This is still the law, except where statutory modifications haveoccurred. If thus incapable of contracting, then incapable, also, ofauthorizinganother to contract for her; for this would be to makethe stream rise higher than its fountain head. Story says:

“ * * *

Every person, therefore, of full age, and not otherwise disabled, has acomplete capacity" for this purpose. But infants, married women,idiots, lunatics, and other persons not sui juris are either wholly orpartially incapable of appointing an a-gent. Idiots, lunatics, and otherpersons not sui juris are wholly ‘incapable; and infants and marriedwomen are incapable, except under special circumstances. * * *

So in regard to married women, ordinarily, they are incapable ofappointing an agent or attorney. * * * \/Vith regard to her separateproperty, she may, perhaps, be entitled to dis'pose of it

,

or to incumberit, through an agent or attorney, because in relation to such separateproperty she is generally treated as a feme sole. I say, ‘perhaps’;for it may admit of-question, and there do not seem to be any satisfactory authorities directly on the point." Story, Ag. (9th Ed.) § 6

.

A similar doubt h_as been elsewhere intimated. Weisbrod v. RailwayCo., 18 \Vis., loc. cit. 40, 86 Am. Dec. 743, and cases“ cited.In this state, however, it has long been steadily maintained that afeme covert, as to her separate_estate in equity, is a feme sole (Turnerv. Shaw, 96 Mo., loc. cit. 28, 8 S. \V. 897, 9 Am. St. Rep. 319, andcases cited); and therefore may charge her separate estate, and make

an agent in regard thereto, to all intents and purposes, as if she hadnever passed sub jugum matrimonii. But, where she is not thus seised,we have held, over and over again, that, not being sui juris, of courseshe could not appoint an agent. \Vilcox v. Todd, 64 Mo. 388; Hall v.Callahan, 66 M0. 316; Silvey v. Summer, 61 Mo. Z53; Henry v. Sneed,99 Mo. 407, 12 S. VV. 663, 17 Am. St. Rep. 580; Flesh v. Lindsay, 115Mo. 1, 21 S. W. 907, 37 Am. St. Rep. 374; Mueller v. Kaessmann, 8-1Mo. 318.Counsel for defendant, however, make citation of Mead v. Spalding,94 Mo., loc. cit. 48, 6 S. W. 384, as asserting a contrary doctrine, andso it does, for it is there broadly asserted that “there can be no doubtbut the husband may be the agent of the wife." The two cases citedfrom our own Reports do not sustain that position, because the firstone was one where the land of the wife, the proceeds of which she

G0oo.PB.& A.(2o Eo.)—8 \

34 THE nnnxrrou (Part 1'

I

brought suit for, was “her sole and separate property.” Eystra v.Capelle, 61 Mo. 578. The second one cited is Rodgers v. Bank, 69 Mo.560, where the subject of the suit was the wife’s money acquired byher under the married woman’s act of, 1875 (section 3296, Rev. St.

1879). But that section authorizes the wife to appoint her husband asher agent for the disposition of her ‘personal property, provided theauthority be in writing, and we have expressly held that, in regard tothat section, a married woman, respecting her personal property heldunder its provisions, is a feme sole.

'Blair v. Railroad Co., 89 Mo., loc.

cit. 391, 1 S. VV. 350. VVe therefore decline to follow the ruling inMead v. Spalding.

A

On account of the reasons expressed in a prior part of this opinion,the error mentioned is a harmless one, and, when this is the case, sucherror in giving erroneous instructions constitutes no ground for reversal. Fitzgerald v Barker, 96 Mo. loc. cit. 666, 10 S. VV. 45, 9 Am.St. Rep. 375; Brobst v. Brock, 10 \Vall. 519, l9 L. Ed. 1002. Therefore judgment afiirmed.‘ All concur. -

WILLIAMS v. SAPIEHA. g

(Supreme Court of Texas, 1901. 94 Tex. 430, 61 S. W. 115.)

BROWN, ]. The Court of Civil Appeals for the First District hascertified to this court the following statement andquestions:“In this cause, now pending before this court on motion for rehearing, we respectfully certify for your decision the questions hereinafterset out. The facts are as follows:“T. D. Mason, by his guardian, brought this suit to remove cloudfrom his title to certain lands, alleging title in himself. The instruments which are alleged to constitute the cloud are a ‘power of attorney purporting to have been executed by T. D. Mason to one ]. W.Tolson, and a‘deed from Tolson to the appellee, Sapieha, conveyingthe land'in question. Mason seeks to have both annulled, on the groundthat he was an imbecile at the date of their execution. Mason acquiredthe land through the will of his deceased grandfather, the tract beingdevised to him and his brother, D. O. Mason, as tenants in common.On 6th day of July, 1878, T. D. Mason executed and delivered to J.W. Tolson a power of attorney, whereby Tolson was authorized, ashis attorney in fact. to sell his interest in the land, and to make a deedto the purchaser. This instrument was duly signed and acknowledgedby him, and was promptly placed of record in the county where the

4 As to husband as agent of wife in building house on her land, cf. Wilson v.Andalusia Mfg. Co., 195 Ala. 477, 70 South. 140, 4 A. L. R. 1016 (1915), withMilligan v. Alexander, 72 W. Va. 615, 79 S. E. 665, 4 A. L. R. 1022 (1913), andextensive annotations at page 10256.

Gonn.Pn.& A.(2n En.)

Ch. 2) 'rm~: PARTIES T0 THE RELATION 35

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land was situated. On the 19th day of March, 1879, Tolson, as suchattorney in fact, executed and delivered to the appellee, Sapieha, adeed conveying the entire tract of land; D. O. Mason, the brother ofT. D. Mason, joining in such deed, and thereby conveying his interestalso. Appellee paid a fair and adequate price for the land, the deedreciting the amount, and its payment, and the transaction was in all

respects fair and open. At the date of the execution of the power ofattorney, T. D. Mason was about 35 years old, and the undisputed evidence shows that he was at that time, had been from his birth, and wasat the date of the trial, an imbecile, without mental capacity to managehis affairs, and that on that account he was without mental capacityto contract at the dates of the two instruments above named. Sapiehahad no knowledge or notice of Mason’s mental condition, and dealtwith Tolson without knowledge of any fact which should have led himto inquire as to the mental condition of,T. D. Mason. T. D. Masonhad never been under guardianship at the date of these transactions,and had never been judicially declared of unsound mind. A guardianwas first appointed for him in 1891. .

“In the absence of opposing testimony, we find, as did the trialcourt, that T. D. Mason received the consideration ‘paid by Sapiehafor his interest in the land. Vl/ade v. Love, 69 Tex. 524, 7 S. \\". 225..\'otwithstanding the pleadings of appellant set up the power of attorney and deed which he assails, no offer is made to retum the consideration, nor was it shown that the appellee could be placed in statu

quo."The questions propounded are: (1) Is the power of attorney fromT. D. Mason to Tolson void as against the appellee, the principal beingnon compos mentis at the date of its execution? (2) If only voidable,will the appellant be permitted to rescind the power of attorney anddeed made in pursuance thereof, in the absence of an offer to returnthe ‘purchase price, or otherwise place the purchaser in statu quo?“In disposing of this appeal this court, in view of expressions inCummings v. Powell, 8 Tex. 81 ; Askey v. VVilliams, 74 Tex. Z94, 11S. VV. 1101, 5 L. R. A. 176, and other Texas cases, treated the deedto Sapieha as if it had been made by Mason in person; and held thepower of attorney, as well as the deed, voidable only. The questionseems not to have been directly decided in this state, and we therefore

certify the above questions. Your attention is called to valuable notesin 16 Eng. Rul. Cas. 735, 6 Eng. Rul. Cas. 54, and Swafiford v. Ferguson. 3 Lea. 292, 31 Am. Rep. 639. Sapieha, being a nonresident ofthe United States, was cited by publication, and not appearing either

in person or by attorney, the trial court appointed an attorney to rep

resent the nonresident.

“Judgment being rendered in Sapieha’s favor, a fee was allowed him

for his services, which was taxed as costs against the plaintitf. Question: \Vas it lawful to tax such fee against the plaintiff in a suit ofthis character?” ‘

36 THE RELATION (Part 1' \

To the first question we answer, the power of attorney mentioned inthis question was voidable, but not void. Elston v. ]asper,'45 Tex.409; Askey v. Williams, 74 Tex. 294, 11 S. W. 1101, 5 L. R. A. 176;Ferguson v. Railway Co., 73 Tex. 344, 11 S. \V. 347; Cummings v.Powell, 8 Tex. 81. The deed of an insane person is not void, but, likethat of an infant, i_syoi'dable, at the election of the party. Irvine v.Irvine, 9 Wall. 626, 19 L. Ed. 800. We believe that thisdoctrine isnot now seriously controverted in the courts of this country. VV e can

see no difference in principle between the act of making a deed whichpasses the title and making an instrument which authorizes another

person to do the same thing. In this state the powers of persons overreal and personal property are so nearly the same that no distinction

can be said to exist in the capacity required for making a sale andtransfer of the one or the other. The law provides different methodsof executing the will of the party, but places no greater restrictionupon the power to sell the one than the other. It has been held uponsound reasoning that a lunatic or an infant may make a power of attor

ney by which simple contracts might be entered into for them; suchas the signing of notes, or the indorsement and transfer of commercialpaper. W'hitney v. Dutch, 14 Mass. 457, 7 Am. Dec. 229; Hastings v.Dollarhide, 24 Cal. 195; Hardy v. Waters, 38 Me. 450.SIn the case of \Vhitney v. Dutch, cited above, a partnership wasformed between an adult and a minor, and in the course of the busi

ness the adult partner executed a note in the firm name. When the minor became of age he ratified the note, but when suit was brought uponit he pleaded his infancy, and claimed that the note was void, and not

subject to ratification. The supreme court of Massachusetts held thatthe note was voidable, and that it

,

having been ratified by the minorafter reaching his majority, was a valid claim against him. That courtsaid: “Then, upon principle, what difference can there be between theratification of a contract made by the infant himself and one made byanother acting under a parol authority from him? And why may notthe ratification apply to the authority as well as to the contract madeunder it? It may be said that minors may be ex'posed if they maydelegate power over their property or credit to another. But they willbe as much exposed by the power to make such contracts themselves,and more, for the person delegated will generally have more experiencein business than the minor. And it is a sufficient security against thedanger from both these sources that infants cannot be prejudiced, forthe contracts are in neither ease binding, unless, when arrived at legalcompetency, they voluntarily and deliberately give effect to the contractso made. And in such case justice requires that they should be compelled to ‘perform’ them.” In the cases of Hardy v. \-Vaters andHastings v. Dollarhide, before cited, the issue was upon the validity ofthe transfer of a promissory note made by the agent of the payee, whowas a minor; and it was claimed that the transfer was void becausethe minor could not confer power upon another to transact such busi

Ch. 2) THE PARTIES cro TH RELATION 37

ness for him. In each of the cases, however, the court held the transfer good when ratified by the minor after arriving at majority. Inother words, the court held the power of attorney to be voidable, andthe act, being ratified, became valid, just as if it had been done by theinfant himself.

'

The Supreme Court of this state in the case of Cummings v. Powellintimated very strongly the opinion that a power of attorney executedby an infant or a lunatic authorizing the sale and conveyance of realestate was merely voidable; but the question was not involved, andthe opinion is not authority. In the case of Ferguson v. Railway Co.the court did in fact decide that the power of attorney given by aninfant was voidable only. The question was in the case, a proper subject for its decision, but in the close of the opinion the court placed thedecision upon another question. In Askey v. \Villiams the defendant,a minor, employed an attorneyto defend him against a criminal charge,and to secure the fee gave a "note with a deed of trust upon land containing a power of sale. The debt being unpaid, the trustee sold theland to pay the note, and in suit for the land the validity of the salewas in issue. It was held that the deed of trust which contained thepower of sale was voidable; that the sale made by the trustee underthe power was subject to be avoided by the minor, just as if the deedhad been executed by the minor in person. \Ve regard this case asdirectly in point, and as deciding the very question ‘presented. It istrue that in the course of the opinion judge Gaines remarked thatpowers given by a minor, when coupled with an interest, were held tobe voidable; but the opinion is not placed upon that ground. The following language of the court shows that the power was sustained asif it had been a deed, placing them upon the same basis: “If the infanthad conveyed the land absolutely as a fee, his deed would not havebeen void, but he could have avoided it within a reasonable time aftercoming of full age upon payment of a just compensation for the services rendered by his grantee. \Ve think the same rule should apply inthis case.”The contention of the appellant that the power of attorney and thedeed made under it which are involved in this controversy are absolutely void because the maker of the power of attorney was at thetime a lunatic is supported by the greater number of adjudicated cases.It is the doctrine of the English courts, and has been followed in thesupreme court of the United States and by the supreme courts of anumber of the states without questioning the soundness upon which itis based, or its consistency with the system of laws under which property rights are held in this country. Of the cases which sustain thisrule we cite the following: Dexter v. Hall, 15 \Vall. 9, 21 L. Ed. 73;Philpot v. Bingham, 55 Ala. 435; Armitage v. VVidoe, 36 Mich. 124:Fetrow v. \Viseman, 40 Ind. 148; Lawrence’s Lessee v. McArter, 10Ohio, 37; Fonder v. Van Horne, 15 \\/'end. 631, 30 Am. Dec. 77; Pylev. Cravens, 4 Litt. 17. In Dexter v. Hall, cited above, the supreme

I

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38 THE RELATION \Part 1

court of the United States reviews at length the English cases, andcriticises the doctrine that the contracts of infants and lunatics arevoidable only; finally basing its judgment upon the proposition thatcontracts made by infants and lunatics, and not delivered by the hand

of the maker, are void. We quote the following to show the basis ofthat opinion: “The doctrine that a lunatic’s power of attorney is voidfinds confirmation in the analogy there is between the situation and actsof infants and lunatics. Both classes of persons are regarded as underthe protection of the law. * * * Yet it is universally held, as laiddown by Lord Mansfield in Zouch v. Parsons, 3 Burrows, 1804, thatdeeds ofian infant which do not take effect by delivery of his hand (inwhich class he places a letter of attorney) are void. \\“'e are notaware that any different rule exists in England or in this country.”In the same court, the same judge, justice Strong, delivered an opinionin the case of Irvine v. Irvine, 9 \Vall. 617, 19 L. Ed. 800, which involved the validity of a sale made under power contained in a mortgage, in which case that court held that the sale was voidable; saying:“Whatever may have been the doubts once entertained, it has long beensettled that the deed of an infant, being an executed contract, is onlyvoidable at his election; that it is not void. It operates to transmit thetitle.”The ablest judges who have dealt with this question have not undertaken to sustain by reason the rule adopted by the supreme court of'the United States. In the case of Armitage v. Vi/idoe, before cited,Iudge Cooley said: “On the authorities, no rule is clearer than thatan infant cannot empower an agent or attorney to act for him.” Andthat able judge contented himself with a citation of authorities insupport of a rule for which he could assign no sound reason. - InPhil'pot v. Bingham, before cited; Judge Stone, of the supreme courtof Alabama, said of this question: “From such an array of authorities,sanctioned as the principle has been by this court, we do not feel at

liberty to depart, although the argument in favor of the exception israther specious than solid. We therefore hold that the power of attorney under which the plaintifiF’s land was sold, made, as it appears tohave been, while he was an infant, was and is what the law denominates void." In the case of Fetrow v. \Viseman, above cited, the su;preme court of Indiana, after having stated the proposition, said:“The proposition may not be founded in solid reason, but it is so heldby all the authorities.” These are fair samples of the cases whichuphold the doctrine that _the power of attorney of an infant or alunatic is absolutely void. The fundamental principle of the cases inwhich the doctrine originated is wholly absent from and at variancewith our system of laws, and we feel that the strong reasoning ofIudge Hemphill in Cummings v. Powell, and the qualified decision inFerguson v. Railway Co., supported by the later case of Askey v. \Villiams, furnish a safer guide by which to regulate the property rightsof the people of this country, and are more in harmony with our sys

— — ___ ;' j—i——— -

Ch. 2) run mnrzns TO THE RELATION 39

tem of la\vs. VVe therefore follow them in preference to the arbitraryrule asserted in the greater number of decisions upon that question.“* * * [The answers to the second and third questions are omitted.It was not shown that the lunatic had any of the money, or that it hadbeen spent for him. Therefore he need not return any.]

_ KING v. BELLORD.(High Court of Chancery, 18133. 1 Hem. & M. 343, 32 ‘L, J. Ch. 646. 8 L. T.Rep. N. S. 633, 2 New Rep. 4-12, 11 Wkly. Rep. 900, 71 Eng. Reprint, 149.)

Vice Chancellor Sir VV. PAGE VVo0D. The point raised in this case,though not covered by express decision, seems to fall within the generalrule that an infant is incapable ofentering into a binding contract.The actual contest arises thus: A testator having chosen to devise estates, upon trusts requiring discretion as to the expediency, as to thetime, and as to the manner of a sale, to three persons, one of whom. isan infant, the question is

,

whether a contract for sale entered intoby those three trustees is a valid contract, which this court can specifically perform. There are numerous authorities which approach thisquestion, but none which decide it. All of them are distinguished fromthis case by the well-known difference ibetween power and property,a marked distinction which has been invariably upheld.There can be no doubt upon the authorities from the earliest times,

that if a man, by his will, gives an infant a simple power of sale without an interest, the infant_may exercise it. All the decisions on thesubject are referredioby Lord St. Leonards in his _w0rk on “Powers,”and I need not discuss them minutely. They all turn on the executionof powers; and there is not a single authority upon the questionwhether an infant can sell an estate devised to him upon trust for sale.There is an opinion of Mr. Preston's, mentioned without disapproval

5 The above case cites the leading cases holding an infant's power of attorney absolutely void. But see, also, Truebiood v. Trueblood, 8 Ind. 195, 65Am. Dee. 756 (1856); Turner v. Bondalier, 31 Mo. App. 582 (1888), and noteto 1 Am. Lead. Cas. 247.

'

Contra: Simpson v. Prudential Ins. Co., 184 Mass. 348. 68 N. E. 673, 63L. R. A. 741. 100 Am. St. Rep. 560 (1903). See, also, Hardy v. Waters, 38Me. 450 (1853); Patterson v. Lippincott. 47 N. J. Law, 457, 1 Atl. 506, 54Am. Rep. 178 (1885), and extended note in 18 Am. St. Rep. 629. As to therelation under this rule of a minor principal to his agent, see Benson v.Tucker, 212 Mass. 60, 98 N. E. 589, 41 L. R. A. (N. S.) 1219 (1912). The following may be added as holding a power by an insane person voidable merely, atthe option of the principal when he reaches a lucid period, or valid, so far asto save the rights of third persons “who, before the insanity intervened. became interested in the power by reason of a consideration advanced, or who.in ignorance of the incapacity. and in good faith, parted with a considerationnf_ value. relying on the apparent authority of the agent.” Matthiessen &

Weichers Refining Co. v. Me-Mahon, Adm’r, 38 N. J. Law, 536 (1876); Blinnv. Schwarz, 177 N. Y. 252, 69 N. E. 542. 101 Am. St. Rep. 806 (1904), aiflrming63 App. Div. 25, 71 N. Y. Supp. 343 (1901).

40 THE nnnarron. (Part 1

by Lord St. Leonards, that an infant can exercise a power even thoughit be coupled with an interest; butlthis is very different from sellingan estate vested in the infant by a devise in fee.It is to be observed, that all the cases relied on with reference topowers, have gone upon the principle that the infant, in executing the

power, is a mere conduit-pipe, as it has been termed, of the will of thecgor gofthe power; so that when the estate is created, the infani (aswas said in the case in Bridgman) is merely the instrument by whosehands the testator or donor acts. The donor, it is said, may use anyhand, however weak, to carry out his intentions. This principle failsaltogether to reach the case of a devise in trust to an infant.It is not in the power of a testator to confer upon an infant a capacity i_

n himself which the law does not give him, although he maymake the infant his hand, his agent, to execute his purpose. He cannotgive an estate to an infant and say that he may sell it

,

when the law

says that he cannot do so. It is unfortunate that the testator shouldhave selected an infant as a trustee; but the inconvenience arisingfrom this circumstance in the particular case, is not to be comparedwith that which would result from holding an infant to have a capacityto sell, which the law denies him. If the defendants still adhere to theoffer made by them before the litigation, I shall dismiss the bill withcosts.“

'

TEBBETTS v. MOORE.(Supreme Court of Judicature of New Hampshire, 1849. 19 N. H. 369.)

Assumpsit for goods sold and delivered. _Verdict for defendant.Woons, J. No objection is made that the auclitor’s report was permitted to be read to the jury, in the form in which it was offered. Wecan therefore take no other view of it than as containing a statementof facts properly laid before the jury. It finds that the articles inquestion were ordered by the sons of the defendant, in his name, andby the plaintiffs delivered to the sons and charged to the father. Thaton former occasions articles had in like manner been delivered by the

plaintiffs to the same individuals, and the defendant had paid for them.without objection but without knowing that articles so ordered anddelivered were included in the account.

6 In Lyon v. Kent, 45 Aln. 656 (1871), it is said: “Any one, except a lunatic,an imbecile, or child of tender years, may be an agent for another.” The courtinpproves Story on Agency, §§ 6

,

7,

9, to the effect that monks, infants, femes

covert, persons attainted, outlawed, or excommunicated, villains and aliens,may be agents for others It the principal is willing to intrust the business to an infant and third persons consent to deal with him, they cannotlater object to his incapacity. Cameron v. Ward. 22 Ga. 168 (1857). Whilethe infant agent may bind his principal, the infant himself, of course. will inno way incur contractual liability thereby, either to his principal or to thirdpersons. Talbot v. Bowen, 1 A. K. Marsh. (Ky.) 436, 10 Am. Dec. 7-17 (1319).

Ch. 2) THE mnrms TO THE RELATION 41

Two clear propositions may be stated upon these facts: First, therelation in which sons stand to a father involves no authority on their

part to contract debts in his name and in his behalf. They cannot bindhim by their acts, without authority emanating from his own will todo so, any more than mere strangers can. In the case of things necessary for their support, the relation of a father to his sons may beshown in aid of other proof of the authority of the latter; but suchis not the present case.‘ * * *

' ’

[The court found no evidence that the supposed principal knew ofthe acts of the son.] _

7\\'i1e as agent 01 the husband, ante, p. 32; post, pp, 71, $3‘; alsoMeyer v. Frenkil, 116 Md. 411, 82 Atl. 208, Ann. Gas. 19130, 875, and note(1911).

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