Maples v. Wightman , 4 Conn. 376 ( 1822 )

Hosmer, Ch. J.

The plaintiff has declared on a promissory note, made in the city of Norwich; and, under the plea of non-assumpsit, it appeared to have been executed by the defendant, when an infant, under the government of a guardian, and at Bozrah, without the said city, and as the surety of Elisha Wightman.

The declaration of the plaintiff would have been insufficient, unless it had contained the averment, that the note was executed within the city of Norwich. Wooster v. Parsons, Kirby 27. On a point so perfectly familiar as this, all argument is superfluous. It has often been established, by direct decision, and rests likewise on the invariable practice and universal understanding, of nearly forty years' continuance.

By the plea of non-assumpsit, the plaintiff's averment was traversed; and the burden of proof according to the general principle of evidence, devolved on him, who took the affirmative of the issue. The allegation that the note was executed in the city of Norwich, was disproved; and hence the city court had no jurisdiction. The adjudication of this point settles the case conclusively against the plaintiff.

Much controversy has existed at common law, relative to the contracts of infants; whether, under given circumstances, they are void or voidable; but the diversity of opinion on this question subsisting between enlightened jurists, I do not feel myself called on to discuss. The statute on this subject provides, "that no person under the government of a parent, guardian or master, shall be able to make any contract or bargain, which in the law shall be accounted valid." Tit. 107. s. 2. p. 487. ed. 1808. In the case of Alsop v. Todd, 2 Root 109. the court considered the above statute, to use their expression, as raising the common law, and rendering absolutely void, all contracts made within its prohibition. In Rogers & ux. v. Hurd, 4 Day 57. the construction of the statute came a second time under review; and the court again decided, that all contracts made by infants against their interest, were void. In delivering their opinion, they say: “It cannot be supposed, that the legislature intended to introduce regulations, merely in affirmance of the common law. What was, then, their intent in passing this law? It is evident, that they did not intend to deprive infants of the power of making contracts for their benefit, nor did they mean, by using the expression “accounted valid,” to leave their contracts, as to their being void or voidable, on the same footing as at common law. They must have contemplated contracts not for their apparent benefit; and their object must have been to render them incapable of making such contracts. Though the term “accounted valid” may be satisfied, by considering them voidable only; yet it is evident, that the legislature intended, by this phrase, to enact, that the contracts of infants should be absolutely void; for such would be the common understanding of the term; and there could be no reason for making the law, unless such was the meaning of it; for otherwise, the statute has no effect, and leaves the matter as it was before at common law. Such has ever since been the general understanding of courts, respecting the construction of this statute.” Again: “The plain principle is, that all contracts made by infants, against their interest, are void; and that all with the semblance of advantage, are voidable." These concurring determinations of the supreme court, have established the law beyond dispute; and subjected the contract sued upon to the test of a simple enquiry: Is the contract opposed to the interest of the infant; or has it a semblance of advantage in his favour? On this subject, who can entertain a doubt? The infant could derive, in any event, no possible benefit from the agreement. He was a surety only; and while incapable of governing his own concerns, and placed under the tutelage of another, he is entangled in a measure, of no profit, but of undoubted hazard. The contract is unquestionably void, to all intents and purposes.

The other Judges were of the same opinion.

New trial not to be granted.