Sec 50

As has been already incidentally noticed,4 an executory contract, i. e., one which requires the action of a court to enforce if performance be refused, cannot, unless for necessaries as hereafter noticed, be enforced against a party who entered into it during infancy, supposing that there was no ratification at majority.5 An executed contract remains in force until disaffirmed ; an executory contract requires affirmatory action for its establishment.6 The executed contract requires the action of a court to disturb it; the executory contract the action of a court to enforce it. The principle pervading both lines of cases is, that a bargain made by an infant, he should have the option of disaffirming when arriving at full age. The distinction between the two is, that, in reference to the executed contract, he then appears as the actor in the suit, bearing the burden of proof, if he wish to set aside the arrangement; while, in reference to the executory contract, he appears as defendant, the burden being on the party seeking to make good against him the contract.-When a contract is executed by an infant, and a title vests in him, this cannot afterwards be disturbed, nor can he, while holding the property, recover back what he paid for it.1 And "if an infant buys an article which is not a necessary, he cannot be compelled to pay for it; but if he does pay for it during his minority, he cannot, on attaining his majority, recover the money back."2

If taking benefit must bear burden.

Distinction between executory and executed contracts.

Ringgold, 6 Ala. 544; Manning v. Johnson, 26 Ala. 446.

1Benj. on Sales, 3d Am. ed. sec 22; Boody v. McKenney, 23 Me. 525 ; Price v. Furman, 27 Vt. 268 ; Whitcomb v. Joslyn, 51 "Vt. 79 ; supra, sec 47.

2 Kettle v. Eliot, Rolle Ab. i. 731, K.; 2 Bulst. 69 ; Cro. Jac. 320. See Evelyn v. Chichester, 3 Burr. 1717.

3 Newry & Ennisk. R. R. v. Coombs, 3 Ex. 565 ; Northwestern R. R. v. Mc-Michael, 5 Ex. 114. Of these cases Mr. Pollock says: "It may perhaps be doubted whether the reason on which these authorities are grounded would apply to the case of shares in a company not having any permanent property ; but it seems tolerably plain that if necessary, the general principles of the law of partnership would, and that the same results would follow, except it may be as to suing the shareholder while still a minor." See supra, sec 40.

4 Supra, sec 47.

5 Hunt v. Peake, 5 Cow. 475; Wilt v. Welsh, 6 Watts, 9.

6Williams v. Moor, 11 M. & W. 256 ; Conklin v. Ogborn, 7 Ind. 553 ; Blank-enship v. Stout, 25 111. 132.

Sec 51

When an executory contract is disaffirmed by an infant, the other contracting party is released from all liability. The agreement becomes a nullity, and when one party is not bound, the other party is not bound.3 Where, however, an infant, on arriving at majority, repudiates a contract of labor for a term of years, he may sue his employer on a quantum meruit for services rendered.4 sec 52. Where an infant cannot be made liable on a contract by a suit on the contract, he cannot be made liable by suing him in tort.8 Thus, an infant innkeeper is not liable for losses sustained by his guests.6 Even an action does not lie against him for deceit in affirming himself of full age, and thereby defrauding the plaintiff.1 Nor does an action lie against him for deceit or false representation in sale of goods.2 Nor does the fact that the infant has made such representations estop him from afterwards setting up infancy ;3 nor, in any action on the contract, does the fraudulent misrepresentation afford any answer upon equitable grounds to the plea of infancy.4

Infant's disaffirmance of executory contract relieves other party, though it may subject him to a quantum meruit.

Infant cannot be made liable on contract by declaring in tort.

1 Supra, sec 35.

2 Turner, L. J., in Taylor ex parte, 8 DeG. M. & G. 254; Benj. on Sales, 3d Am. ed. sec 24, citing Robinson v. Weeks, 56 Me. 102; Breed v. Judd, 1 Gray, 456 ; Harney v. Owen, 4 Blackf. 337; Bailey v. Bamberger, 11 B. Mon. 113; Smith v. Evans, 5 Humph. 70; Hill v. Anderson, 5 Sm. & M. 216; Cummings v. Powell, 8 Tex. 801. See, however, Riley v. Mallory, 33 Conn. 201, where it was held that an infant, on returning a thing purchased, could recover what he paid for it.

3See supra, sec 2, 47. 4 Supra, sec 42; Sloan v. Hayden, 110 Mass. 141; Whitmarsh v. Hall, 3 Denio,.

377; Ray v. Haines, 52 111. 485 ; for analogous cases see infra, sec 711 et seq.

5 Jennings v. Rundall, 8 T. R. 335 ; Price v. Hewett, 8 Ex. 146; Burley v. Russell, 10 N. H. 184, Prescott v. Nor-ris, 32 N. H. 101; West v. Moore, 14 Vt. 447; Tilson v. Spear, 38 Vt. 311; Merriam v. Cunningham, 11 Cush. 40 ; Conroe v. Birdsell, 1 Johns. Cas. 127; People v. Kendall, 25 Wend. 399; Schenck v. Strong, 1 South. 87; Stool-foos v. Jenkins, 12 S. & R. 400; Wilt v. Welsh, 6 Watts, 9 ; Penrose v. Cur-ran, 3 Rawle, 351.

6 Crosse v. Androes, 1 Roll. Ab. 2 D. pl. 3.