Sec 62

Where an executory contract by an infant is ratified by him conditionally, after he comes of age, the condition must be complied with, in order to enable the ratification to operate.2 A promise to pay when able will not be effective as a ratification without proof of ability.3

Sec 63

We have already adverted to the distinction between executed and executory contracts in this relation.4 An executed or partially executed contract remains in force from the nature of the case, and must be repudiated to be avoided. On principle, also, an executory contract, made during infancy, binds until repudiated ; but a refusal to comply with it, on suit being brought, is a repudiation, and when the other party sues after such repudiation, there must be specific proof of intermediate affirmance to overcome the proof of repudiation presented by resisting the suit. It must be shown that the defendant, before the suit was brought, affirmed the contract.5 "A mere acknowledgment of the debt, such as would take a case out of the statute of limitations, is not a ratification of a contract made during minority."1 But a promise to pay, whether in express words, or inferrible from the terms in which the debt is spoken of, constitutes a ratification.2 There need not, however, be an express promise to pay on demand,3 provided the promise involves an express adoption of the debt.4 Part-payment, after attaining majority, however, is not a ratification.5 - By statute in England, and in several states in this country, a ratification of an executory contract must be in writing.6 - "When a sale of real estate by an infant is repudiated, and defence taken on suit brought on the contract, strong proof of ratification after majority and before repudiation must be adduced to overcome the repudiation.7

When ratification is conditional condition must be complied with.

Executory contract, if resisted, must be shown to have been ratified.

1 Bigelow on Est. 3ded. 484 et seq.

2 Cole v. Saxby, 3 Esp. 159 ; Thompson v. Lay, 4 Pick. 150; Proctor v. Sears, 4 Allen, 95 ; Everson v. Carpenter, 17 Wend. 419. As to conditions generally, see infra, sec 545 et seq.

3 Chandler v. Glover, 32 Penn. St. 509 ; then see Bobo v. Hansell, 2 Bailey, 114, and see infra, sec 588 et seq.

4 Supra, sec 56.

5 Thrupp v. Fielder, 2 Esp. 628; Thornton v. Ellingworth, 2 B. & C. 824; Hale v. Gerrish, 8 N. H. 374; Robbins v. Eaton, 10 N. H. 561; Thompson v. Lay, 4 Pick. 48 ; Rogers v. Hurd, 4 Day, 57; Wilcox v. Roath, 12 Conn. 550; Bigelow v. Grannis, 2 Hill, N. Y. 120; Curtin v. Patton, 11.

S. & R. 305; Hinely v. Margaritz, 3 Barr, 428 ; Fetrow v. Wiseman, 40 Ind. 148; Alexander v. Hutcheson, 2 Hawks, 535; Ordinary v. Wherry, 1 Bailey, 28 ; Mayer v. McClure, 36 Miss. 389 ; Ferguson v. Bell, 17 Mo. 347. And see to same general effect, Tucker v. More-land, 10 Pet. 75 ; Robinson v. Weeks, 56 Me. 102; Aldrich v. Grimes, 10 N. H. 194; Emmons v. Murray, 16 N. H. 385 ; Morrill v. Aden, 19 Vt. 505 ; Hoxie v. Lincoln, 25 Vt. 206; Martin v. Mayo, 10 Mass. 137 ; Chandler v. Simmons, 97 Mass. 871; Burnham v. Bishop, 9 Conn. 330 ; Kline v. Beebe, 6 Conn. 494; Millard v. Hewlett, 19 Wend. 301 ; Spencer v. Carr, 45 N. Y. 406 ; Hoyle v. Stowe, 2 Dev. & Bat. 320.