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not to injure his master's property, or the property of others in his master's care.93 The master may justify a battery in defense of the servant, and vice versa.94

It is the duty of the master to pay the servant the wages agreed upon, unless the servant has forfeited his right to them. According to the better opinion, if a servant abandons the service without excuse, or is discharged for good cause, he forfeits the right to wages, even for the time he has served. Some courts, however, even in these cases, allow the servant to recover the reasonable value of the services actually rendered.95

§ 173. Master's Liability for Injuries to Servant. This is a subject of much difficulty, and one upon which the rules of law vary in the different States. It will be taken up specially at a later stage of the course. For the present it is sufficient to say that, aside from statute, it is the duty of the master, which he cannot delegate to others, and for a breach of which he is liable to the servant in the case of personal injuries, to use ordinary care: (1) To provide reasonably safe and suitable tools and appliances; (2) to provide reasonably safe premises; (3) to provide competent fellow servants and a sufficient number of them; (4) to promulgate rules, where the nature of the work requires them; and (5) to instruct and warn young and inexperienced servants as to any dangers of the employment.96 The master is liable only for failure to exercise reasonable care in the performance of these duties. In other words, he is not an insurer against injury to the servant.97

On entering the service a servant impliedly contracts that he possesses the ordinary skill and experience of those engaged in the occupation he undertakes, that he will exercise ordinary care to protect himself while engaged in that occupation, and that he will assume the usual risks of the employment, including, in most States, the risks arising from the negligence of fellow servants.98 To this rule, however, there are a number of exceptions. The rule does not generally apply in the following cases: (1) Where, although he may know of the defect or danger, he does not necessarily, and should not reasonably, know of or appreciate the consequent risk; (2) where, without proper notice of increased risk, he is put to a service outside of, and more dangerous than, the employment for which he was engaged; (3) where the master has promised to remove the peril, unless the danger is so immediate and imminent that an ordinarily prudent man would not continue in the service; (4) and even in the latter case, the risk will not be assumed if the

93. Tiffany Pers. & Dom. Rel. 480. 94. See 3 Cyc. 1075.

95. See 26 Cyc. 1042, 1045; Tiffany Pers. & Dom. Rel. 481.

96. Tiffany Pers. & Dom. Rel. 483; 26 Cyc. 1076 et seq.

97. See 26 Cyc. 1077, 1102.

98. Tiffany Pers. & Dom. Rel. 1177; 26 Cyc. 1177 et seq.

duty to continue in the dangerous service is required or justified by some emergency approved by law; (5) where the servant does not voluntarily expose himself to the peril.99

Where the negligence or want of ordinary care and caution on the part of the servant so far contributed to his injury that it would not have occurred but for such negligence, he cannot, as a general rule, recover therefor.1

§ 174. Rights of Master and of Servant as Against Third Persons. The master may, as a rule, recover from third persons for any damage suffered by reason of their wrongful interference with his relationship to the servant, either by enticing the servant away, abducting or harboring him, inflicting personal injuries upon him, falsely imprisoning him, or otherwise depriving the master of his service in whole or in part.2

On the other hand, a servant may maintain an action against a third person for causing his discharge, if he acted gratuitously and maliciously, and damage has resulted, but not otherwise.3 § 175. Master's and Servant's Liability to Third Persons. On principles of the law of agency the master is liable to third persons on contracts entered into by the servant in his name, or on his behalf, if he expressly or impliedly authorized the contract, or if he subsequently ratified it, but not otherwise. The master is also liable for frauds, negligence, and other wrongs committed by the servant, if expressly or impliedly directed or authorized by him, or if committed by the servant in the course of the employment, but not otherwise. To render him liable under this rule, the relation must be that of master and servant, and not that of employer and independent contractor.

A servant is not personally liable to third persons on contracts made by him in the name or on behalf of the master, unless he failed to disclose the existence of his principal, or contracted without authority. But a servant is ordinarily personally liable to third persons for torts committed by him, although it is by his master's direction. By the weight of authority, however, he is not liable to third persons for mere non-feasance. In such a case he is liable to the master, and the master alone is liable to third

99. Tiffany Pers. & Dom. Rel. 489; 2 Jaggard Torts 1021; 26 Cyc. 1177

et seq.

1. See 26 Cyc. 1226 et seq.

2. See 26 Cyc. 1580 et seq.; Tiffany Pers. & Dom. Rel. 499.

3. Tiffany Pers. & Dom. Rel. 501;

26 Cyc. 1583.

4. See supra, § 147.

5. See 26 Cyc. 1518 et seq.

6. The general rule is that if one

renders service, in the course of an
occupation representing the will of
his employer only as to the result of
his work, and not as to the means by
which it is accomplished, it is an in-
dependent employment, and the re-
lation of master and servant does not
exist. See 26 Cyc. 1546 et seq. See
also supra, § 144.
7. See supra, § 149.

persons. But for negligence, as distinguished from mere nonfeasance, the servant is personally liable.


§ 176. Who Are Infants. The term The term "infancy" is used in law to designate the status of persons under the age of majority, which is fixed by the common law at twenty-one years for both sexes; but by statute in some States, females attain their majority at eighteen, and in a few states all minors attain their majority on marriage.9

§ 177. Contracts of Infants-a. In General. To protect infants from the injuries which might arise from their own acts or the acts of designing adults through their inexperience and immature mental capacity, the law has thrown its protection around them, in the form of various privileges and disabilities. The principal of these is the privilege of avoiding their contracts, and the disability to bind themselves by their contracts, under certain circumstances. Contracts of infants are either void, voidable, or valid; "void" being used in the sense of void for all purposes, and incapable of ratification; "voidable," in the sense of voidable at the option of the infant; and "valid," in the sense of binding on the infant. Emancipation of an infant by his parent relieves him, as has been seen, from the duties arising from the relation of parent and child; but this does not remove the disabilities arising from his infancy. It does not clothe him with capacity to contract.

The contracts of an infant are, as we have just said, either void, voidable, or valid. It was formerly held that all contracts of an infant which are manifestly to his prejudice are absolutely void; and in some states, still, powers of attorney, appointments of an agent, contracts of suretyship, and bonds with a penalty are held void. The tendency now is, however, to hold no contract void. Where a contract is not void, nor valid, as hereafter explained, it is simply voidable at the infant's option. Most contracts are within this class.10


The following contracts are valid and bind the infant as well as the adult: (1) Contracts created by law or quasi-contracts.1 (2) Contracts for necessaries. By the better opinion, these are contracts created by law.12 (3) Contracts entered into under direction or authority of a statute. (4) Contracts made in order to do what he was legally bound to do and could have been compelled

8. Tiffany Pers. & Dom. Rel. 510; 26 Cyc. 1543.

9. Tiffany Pers. & Dom. Rel. 359; 22 Cyc. 511.

10. See 22 Cyc. 580 et seq.; Tiffany

Pers. & Dom. Rel. 360; Clark Contr. (2d ed.) 149.

11. As to such obligations see supra, § 138.

12. See infra, § 177, b.

to do. (5) In some jurisdictions an executed contract is binding upon an infant where he has received a substantial benefit under it, and cannot place the other party in statu quo. As to this, however, there is much doubt and the weight of authority is the other

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b. Liability for Necessaries. An infant is liable for the reasonable value of necessaries furnished to him, or to his wife, or in some but not all jurisdictions to his children,15 where he refuses or neglects to provide for them.16 What are necessaries" will depend upon the circumstances of the particular case. The term includes whatever is reasonably needed for subsistence, health, comfort, or education, taking into consideration his state, station, and degree in life; but it does not include: (1) What is purely ornamental; (2) what contributes solely to pleasure; (3) what he is already fully supplied with; (4) articles which might otherwise be necessaries, when he is lawfully under the care of his parent or guardian, and is supplied by him with such things as he considers necessary; (5) what concerns his estate or business, and not his person; and (6) he is not liable at law, although it is otherwise in equity, for money borrowed by him, although it is expended for necessaries, but he is liable even at law where the lender applies the money himself or sees it applied in payment for necessaries, or pays it for necessaries already furnished.17

Persons supplying an infant act at their peril, and cannot recover if the actual circumstances were such that the things furnished were not necessaries;18 and to hold the infant liable, the credit must have been given to him.19

c. Ratification and Avoidance. The privilege of infancy is personal to the infant, and he alone can take advantage of it during his life and sanity. On his death, or if he becomes insane, his right of avoidance passes to his heirs, personal representatives, or conservator or guardian. The other party to the contract, not being himself under any disability, is bound if the infant chooses to hold him.20

A promise to perform an isolated act, or a contract that is wholly executory, is of no validity until it has been ratified; but an executed contract, or a contract that involves continuous rights and obligations, as in the case of a contract of partnership, is valid

13. See 22 Cyc. 584, 613; Clark Contr. (2d ed.) 149; Tiffany Pers. & Dom. Rel. 360.

14. Necessaries furnished wife see supra, 155, d.

15. Necessaries furnished children see supra, 162, a.

16. See 22 Cyc. 590; Tiffany Pers.

& Dom. Rel. 367; Clark Contr. (2d ed.) 155.

17. See 22 Cyc. 592, 597; Tiffany Pers. & Dom. Rel. 367; Clark Contr. (2d ed.) 155.

18. See 22 Cyc. 595.
19. See 22 Cyc. 591.
20. See 22 Cyc. 609.

until it has been disaffirmed.21 A contract is disaffirmed by any conduct which is inconsistent with the existence of the contract and shows an intention to repudiate it.22 In some jurisdictions, by statute, ratification of a contract by an infant must be in writing. In the absence of such a provision, ratification may be by an express new promise, either written or oral, or by the weight of authority, it may be implied from declarations or conduct showing an intention to adopt the contract as binding.2


The ratification or disaffirmance must be in toto. The contract cannot be ratified or disaffirmed in part only.24 An infant may disaffirm his executory contract without first returning the consideration received by him; but after its disaffirmance he must return the consideration, if he has it. As a rule, if the contract has been executed by him, he cannot avoid it and recover what he has paid or for what he has done, without returning the consideration, if he has it; but it is otherwise, by the weight of authority, if he has squandered or otherwise disposed of the consideration during his minority.25

An infant can hold an office

§ 178. Capacity to Hold Office. which is purely ministerial, but not one requiring the exercise of discretion or involving financial responsibility.26

§ 179. Crimes and Torts of Infants. We have already seen that at common law an infant under seven years of age cannot commit a crime; that between seven and fourteen there is a presumption of incapacity, which may be rebutted; and that after fourteen there is a presumption of capacity.27

These rules do not apply to torts. An infant must answer for his torts as fully as an adult, and the fact that the tort is committed under authority or command of his parents is no defense.28 But tenderness of age, in proportion as it affects capacity to act intelligently, may be material to their liability, when intention to do wrong, or want of care, is an essential ingredient of the wrong.29 And since an infant is not bound by his contract, except in certain cases, a breach of contract, except in those cases, cannot be treated as a tort so as to make him liable. The tort must be separate and independent of it.30

21. See 22 Cyc. 602, 612; Clark Contr. (2d ed.) 160.

22. See 22 Cyc. 612.
23. See 22 Cyc. 603, 604.
24. See 22 Cyc. 601, 604.
25. See 22 Cyc. 613-616.

26. See 22 Cyc. 515; Tiffany Pers. & Dom. Rel. 398.

27. See supra, § 90, b.

28. See 22 Cyc. 618; Tiffany Pers. & Dom. Rel. 406; 1 Jaggard Torts 158.

29. See 22 Cyc. 622; 1 Jaggard Torts 158.

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