Sec 46

Whether a disaffirmance of part of a contract is a disaffirmance of the whole, depends upon its divisibility. Ordinarily, however, when the ground of disaffirmance goes to incapacity, this pervades and discredits the entire contract.3 But an infant, when rescinding a contract to work for a term of years, may recover on a quantum meruit for his services rendered.4

Sec 47

As we will hereafter see more fully, when a contract is executory on both sides, a rescission by the infant relieves the other party from the duty of performance.5 When it is executory on the part of the adult, but executed on part of the infant, and the infant rescinds, he may recover back from the adult what he has paid.6 According to Chancellor Kent,7 "If an infant pays money on his contract, and enjoys the benefit of it, and then avoids it when he comes of age, he cannot recover back the consideration paid. On the other hand, if he avoids an executed contract when he comes of age, on the ground of infancy, he must restore the consideration he has received."8 It is true that it has been held that a female infant, plainly such, who agrees to release dower for a consideration, and afterwards disaffirms the release, cannot be compelled to pay back money received by her for the release.1 But the right rule is, that where there has been a fair bargain, the benefit of which has been received by the infant, then, if he repudiates the contract when he comes of age, he should return what he has received, if retained by him.2 If he has sold goods, and been paid for them, he will not, on retaining the price, be assisted in recovering them back.3 But if he no longer retains the specific money or other consideration obtained by him from the adult, this having been wasted by him during infancy, then, if when he comes of age he repudiates the transaction, he cannot be compelled to return the equivalent of what he has received.4 In such case payment or tender of the amount is not necessary to enable him to avoid the contract, and recover back the thing sold.5 The reason of the distinction may be this: A party doing business with an infant must take the risk of the infant wasting the goods or money obtained by him, and that this may be likely to be the case, the adult ought to infer from the very fact of infancy. If the money or goods received are wasted, and the infant, on coming of age, should say, "I will not keep to this bargain, but repudiate it," then the other party must bear the loss as a consequence of his improvidence. It would be otherwise, as we will see,6 as to things remaining in the infant's hands after he comes of full age. The very retention of such things is a ratification of the bargain.7 Retaining and enjoying the fruits of a bargain, as we will see,1 ratifies the bargain. But if the fruits of the bargain are lost, before majority, there can be no such ratification.

Disaffirmance of part is disaffirmance of whole.

Compensation not required for what has been wasted in infancy.

1 Ibid.; Dunbar v. Todd, 6 Johns. 357 ; Myers v. Saunders, 7 Dana, 506; Somers v. Pumphrey, 24 Ind. 231.

2 See infra, sec 61.

3 See infra, sec 114 et seq.

4 Gaffney v. Hayden, 100 Mass. 137, and other cases cited supra, 42, infra, sec 51, 711.

5 Supra, sec 2; infra, sec 50 ; Tyler on Inf. 2d ed. sec 35. 6 Millard v. Hewlett, 19 Wend. 301;.

Medbury v. Watson, 7 Hill, 100; see Hoxie 0. Lincoln, 25 Vt. 206.

7 2 Kent's Com. 240.

8 See Cresinger v. Welsh, 15 Ohio, 156. That an infant, when disaffirming a contract, is only compelled to restore the consideration when able to do so, and that when the money is expended, he may avoid without refunding, see Reynolds v. McCurry, 100 111. 356.

1 Shaw v. Boyd, 5 S. & R. 309; see Walsh v. Young, 110 Mass. 396; Doe v. Abernethy, 7 Blackf. 442.

2 Infra, sec 48 a. See Williams v. Brown, 34 Me. 594; Shaw v. Cuffin, 58 Me. 254; Riley v. Mallory, 33 Conn. 201; Oliver v. McClellan, 21 Ala. 673 ; Kerr v. Bell, 44 Mo. 120.

3 Badger v. Phinney, 15 Mass. 363.

4 Price v. Furman, 27 Vt. 268; Ed-garton v. Wolf, 6 Gray, 456; Gibson v. Soper, 6 Gray, 279 ; Chandler v. Simmons, 97 Mass. 508; Green v Green, 7 Hun, 492, 69 N. Y. 553 ; Dill v. Bowen, 54 Ind. 204; Manning v. Johnson, 26.

Ala. 446 ; Hill v. Anderson, 5 Sm. & M. 216 ; Smith v. Evans, 5 Humph. 70, and other cases cited, Tyler on Inf. 2d ed. sec 37.

5 Dana v. Stearns, 3 Cush. 372; Chandler v. Simmons, 97 Mass. 508 ; Bartlett v. Drake, 100 Mass. 174 ; overruling dicta in Bartlett v. Coates, 15 Gray, 445 ; Badger v. Phinney, 15 Mass. 359.

6 Infra, sec 48 a.

1 See this distinction accepted in Bartlett v. Drake, 100 Mass. 174; Walsh v. Young, 110 Mass. 396 ; and cases infra, sec 48.