Sec 118

Intoxication is a term embracing many degrees. In some countries, few bargains are struck at the fairs where business is largely done without one at least of the parties having previously taken some stimulant. Intoxication also may be by other modes than spirituous liquors; medicines, when essential to sustain persons of failing health, being taken by them when any particular business transaction is impending, so as to strengthen them for the task. It does not follow that a man is unfit for business because he is acting under stimulants. Some of the most eminent statesmen and lawyers-e. g., the younger Pitt, and Luther Martin-made their best speeches, and conducted business most ably, when under stimulants. To say, therefore, that intoxication avoids contracts would subject business transactions to a distressing uncertainty. Nor is this all. A party who wanted to make a bargain, as to which he could play fast and loose, would only have to get drunk, or appear to get drunk, beforehand, and then he could affirm or repudiate as he chose. Hence the mere fact that, when a contract, in itself fair, was executed, one of the parties was under the influence of stimulants, does not avoid it.1

Mere intoxication no ground for holding contract void.

1 It is only by this distinction that I am able to reconcile the conflicting cases. See cases cited, sec 106-113; Blakeley v. Blakeley, 33 N. J. Eq. 502, and a learned note thereto ; Matthiesen R. R. Co. v. McMehan, 38 N. J. L. 537 ; Evans v. Horan, 52 Md. 610; Freed v. Brown, 55 Ind. 310 ; Murray v. Carlin, 67 111. 286 ; Searle v. Galbraith, 73 111. 269 ; Titcomb v. Vantyle, 84 111. 371; McCormick v. Littler, 85 111. 32; Willemin v . Dunn,.93 111. 511. See also 1 Wh. & St. Med. Jur. sec 7. When Bramwell, L. J., in Drew v. Nunn, L. R. 4 Q. B. D. 669, said, "If a man becomes so Jar insane as to have no mind, perhaps he ought to be deemed dead for the purpose of contracting;" he probably had the distinction of the text in mind.

2 Infra, sec 120; supra, sec 58 et seq.

Sec 119

Between drunkenness when set up as a defence to an indictment for crime, and drunkenness when set up as avoiding a contract made under its effects, the legal relations are very different. In the first case it is properly held that to the fact of guilt drunkenness is no defence, though it may be shown for the purpose of lowering the grade. He who voluntarily becomes drunk, voluntarily brings upon himself the penal consequences of drunkenness. The same rule applies to the drunkard's liability for torts. But it is generally otherwise when a party is sued on a contract made by him when so stupidly drunk as to exhibit his incapacity to those dealing with him. It is true that we can conceive of a latent phase of drunkenness which may not so exhibit itself. There are undoubtedly stages in intoxication, also, to which we could not assign incapacity without assigning it to other cases of exhilaration, and without, therefore, preposterously extending the limits of incapacity. But on the other hand, a contract made by a man when obviously so drunk as to be incapable of rational action, will not be enforced against him when on its face unfair. Such a contract must be inferred to have been fraudulently obtained; and, hence, its performance will not be enforced by the courts.1 At the same time, if a contract made when drunk is ratified when sober, it binds the party so ratifying.2 As a general rule, therefore, courts of equity will relieve against contracts entered into in a state of intoxication : (1) where the intoxication produced mental incapacity; and (2) where it produced mental excitement, subjecting the party to the undue influence of the other contracting party, who thereby gains an unfair advantage.3 sec 120. As is shown in the kindred case of ratification on Otherwise in case of fraud.

1 Cooke v. Clayworth, 18 Ves. 12; Moss v. Tribe, 3 F. & F. 297 ; Mathew v. Baxter, L. R. 8 Exch. 132 ; Pittenger v. Pittenger, 3 N. J. Eq. 156; Johns v. Fritchey, 39 Md. 258; French v. French, 8 Ohio, 214 ; Henry v. Ritnour, 31 Ind. 136; Bates v. Ball, 72 111. 108; Belcher v. Belcher, 10 Yerg. 121; Miller v. Finley, 26 Mich. 249 ; Schramm v. O'Connor, 98 111. 539; Pickett v. Sutter, 5 Cal. 412. To the same effect see authorities cited in 1 Wh. & St. Med. Jur. sec 16 a; Burroughs v. Rich-man, 13 N. J. L. 233; Wigglesworth v. Steers, 1 Hen. & M. 70 ; Mansfield v. Watson, 2 Iowa, 111 ; Cummings v. Henry, 10 Ind. 109 ; Joest v. Williams, 42 Ind. 565 ; Broadwater v. Darne, 10 Mo. 277 ; Eaton v. Perry, 29 Mo. 96 ; Keough v. Foreman, 33 La. An. 1434. As holding to a strict rule, see Foot v. Tewksberry, 2 Vt. 97 ; Caulkins v. Fry, 35 Conn. 170 ; Drummond v. Hopper, 4 Harring. 327; Jenners v. Howard, 6 Blackf. 240; Fitzgerald v. Reed, 9S. &M. 94. That notorious habitual drunkenness incapacitates, seeKlohs v. Klohs, 61.

Penn. St. 245. In State Bk. v. McCoy, 69 Penn. St. 204, it was held that drunkenness of the maker of a note would not be a defence against a bona fide endorsee for value. See S. P. McSpar-ren v. Neeley, 91 Penn. St. 17 ; Miller v. Finley, 26 Mich. 249 ; and see to same effect Caulkins v. Fry, 35 Conn. 170. As holding contracts of drunkards voidable only when the drunkenness is such as to produce incapacity or to subject the party to fraud on the other side, see Walker v. Davis, 1 Gray, 506; Van Wyck v. Brasher, 81 N. Y. 260; Burroughs v. Richman, 13 N. J. L. 233 ; Johns v. Fritehey, 39 Md. 258; Cummings v. Henry, 10 Ind. 109 ; Joest v. Williams, 42 Ind. 565 ; Bates v. Ball, 72 111. 108; Mansfield v. Watson, 2 Iowa, 111; Broadwater v. Darne, 10 Mo. 277 ; Eaton v. Perry, 29 Mo. 96 ; Cavender v. Waddingham, 5 Mo. Ap. 457 ; Phelan v. Gardner, 43 Cal. 306. A contract voidable from the drunkenness at the time of one of the parties may be subsequently ratified. Infra, sec 122.

1 Pitt v. Smith, 3 Camp. 33; Cory v. Cory, 1 Ves. Sen. 19 ; Say v. Barwick,.

1 Ves. & B. 196; Gore v. Gibson, 13 M. & W. 623 ; Cooke v. Clayworth, 18 Ves. 12 ; Bliss v. R. R., 24 Vt. 424; Mitchell v. Kingman, 5 Pick. 431; Rice v. Peet, 15 Johns. 503; Wager v. Reid, 3 T. & C. (N. Y.) 332 ; Hutchinson v. Tindell,.

2 Green, Ch. (3 N. J. Eq.) 357; Burroughs v. Richman, 1 Green, N. J. 233; Campbell v. Spencer, 2 Binn. 133; Wilson v. Bigger, 7 Watts & S. 111 ; Dulany v. Green, 4 Harring. Del. 285; Johns v. Fritchey, 39 Md. 258; Men-kins v. Lightner, 18 111. 282; Scanlan v. Cobb, 85 111. 296; Henry v. Rite-nour, 31 Ind. 136; Mansfield v. Watson, 2 Iowa, 111; Jones v. Perkins, 5 B. Mon. 225 ; Richardson v. Strong, 13 Ired. L. 106; Morrison v. McLeod, 2 Dev. & B. Eq. 226. In Pitt v. Smith, 3 Camp. 33, Lord Ellenborough went so far as to hold that intoxication incapacitates a party from contracting, but this must be understood as meaning intoxication to an extent which makes it a fraud in the other contracting party.

2 Gore v. Gibson, 13 M. & W. 623; Matthews v. Baxter, L. R. 8 Exch. 132. Infra, sec 120.

3 Wigglesworth v. Steers, 1 Hen. & Munf. 70; Birdsong v. Birdsong, 2 Head, 289 ; Belcher v. Belcher, 10 Yerg. 121; arriving at full age,1 ratification may be inductively shown from all the circumstances of the case. Hence, reteution by a party when sober, of things bought by him when drunk, is to be regarded a ratification of the bargain.2 The bargain is in itself only voidable, like the bargains of infants, and is open to subsequent ratification by a party capax negotii.3 Even executory contracts may be thus ratified: "It has been argued that a contract made by a person who was in the position of the defendant, is absolutely void. But it is difficult to understand this contention. For, surely, the defendant, upon coming to his senses, might have said to the plaintiff, ' true, I was drunk when I made this contract, but still I mean, now that I am sober, to hold you to it.' And if the defendant could say this, there must be a reciprocal right in the other party."4.