At the close of the evidence each party moved for the direction of a verdict. By consent of the parties the jury was discharged and the case submitted to the justice presiding, who subsequently rendered his decision containing findings of fact and conclusions of law and directed judgment in favor of the plaintiff. The facts are found in the decision with great detail and settle the conflicting facts and any inferences fairly deducible therefrom in favor of the plaintiff. Each finding is supported by evidence to sustain it and a new trial should not be ordered unless we are satisfied that the decision in its material features is decidedly contrary to the evidence.
It is claimed by the learned counsel for the appellant that the written agreement was without consideration and that it was not ratified by Mrs. Smith after she attained her majority, and these contentions comprise the principal questions requiring consideration.
The agreement on its face imports a valuable consideration. The presence of the seal and the acknowledgment of the receipt of one dollar imply a consideration (Mutual Life Ins. Co. v. Yates County Nat. Bank, 35 App. Div. 218; Matter of Steglich, 91 id. 75; 6 Am. & Eng. Ency. of Law [2d ed.], 762; 2 Whart. Ev. § 1045), which may be rebutted by extraneous proof. (Baird v. Baird, 145 N. Y. 659.) Eliminating, however, the effect of the seal and the acknowledgment of payment, the agreement is founded on services performed by the plaintiff while -in the employment of Miss King, and for which she had agreed to pay. Had Mrs. Smith been an adult the agreement in and of itself would have been sufficient to enable Miss Parsons to recover upon it, unless its validity was impeached by proof.
It becomes important, therefore, to refer to the evidence for the purpose of ascertaining if the recitals of employment and service
The agreement was executed as Mrs. Smith and her husband were about-to depart from this country for their future home in England. . In entering into the agreement she was not acting alone or unadvisedly. Her husband and father were parties to the contract and they personally became liable for the payment of the allowance which she fixed Upon as the remuneration for-the services rendered. The Contract was drawn by her lawyer. The solemn recitals of consideration were not stéalthily inserted in it or with-' out her knowledge. The attorney was,not' preparing this important agreement .for his client without information concerning the consideration. ' He ascertained the inducement for the agreement and ' embodied' it clearly therein. ' There , is no suggestion and there
The two letters quoted, which are the first indication of any intention to pay, do not militate against the contractual liability. These ladies were close friends. We would not expect in their letters, filled with outbursts of affection, to find the one asserting a debt and the other insisting that any payment made was voluntary. There was no enforcible demand.. Miss King was a minor during all the time of the rendition of the services which induced the agreement. When she approached womanhood, realizing that the services had been 'valuable to her and that her friend was needy, she saw fit to impose upon herself their payment as an obligation. The correspondence denotes that the amount had been the subject of conversation and had been agreed upon between them, and that sum was adhered to from the beginning. One or two of the witnesses testified that Mrs. Smith said these payments were voluntarily made by her. They were originally. She could not have been made to pay. She was animated by her love and affection in undertaking to compensate where no debt could have been established. Hone the less, the compelling moral obligation did not wipe out the services rendered upon which she had the right to put a money value and by a binding agreement assume their payment according to her own estimate.
Her declarations, if competent, are not sufficient to warrant the setting aside of the judgment in view of the other evidence contained in the record, and all of which was considered by the trial justice in arriving at his conclusion.
These facts are established by evidence which is substantially undisputed. ■ We think, therefore, the appellant has not affirmatively established that the agreement was without a valuable consideration, but on the contrary, the facts affirm its validity.
It was? of Qourse, essential to the validity of the agreement that
For eight years without interruption she caused the sum, which she had covenanted to pay, to. he turned over to the- plaintiff. An intelligent lady, with abundant, means, with the active co-operation 1 of her husband, she met the obligation graciously undertaken'while a minor. She paid' understandingly. It is too late now to claim that she did not intend to conform to the terms of the written agreement entered into with so much solemnity.- . If Mrs. Smith tiré year before her death hail attempted to repudiate this agreement, claiming that it was without consideration and that it had not been ratified by her, the endeavor-would have been. unavailing if based on the proof contained in this record. The contract was riot void. T-he authorities are- quite uniform in maintaining the principle, that -the contract of an- infant is voidable only,, irrespective, of whether for his benefit or-to his prejudice. (Blinn v. Schwarz, 177 N. Y. 252; Henry v. Root, 33 id. 526; 2 Kent Comm. 234 et seg.; 1 Pars. Cent. [5th ed.] 293 et seq.; 2 Black. Comm. 291; 16 Am. & Eng. Ency. of Law ,[2d ed.], 272 et seg.)
Mrs. Smith, on becoming of age, might have entered into a new agreement with like import, to the old One. She preferred to keep the -old one alive. She’ had the same power to do this as to enter . into-an independent contract.,
It is claimed there was no ratification because Mr. Smith made
Again, it is contended that the recital of consideration, in the agreement is not binding on Mrs. Smith because she was an infant at the time of its execution, and authorities are cited holding that the admissions of an infant are not binding against him. In these cases there had been no ratification, and the admissions made during infancy were attempted to be used to establish an estoppel or a liability" notwithstanding the failure to show an affirmance of the agreement. In Sims v. Everhardt (102 U. S. 300), cited in the dissenting opinion, the infant had executed a deed during her minority asserting that she was of age. There was no recognition of the deed after she attained majority, and she commenced an action to set it aside. It was claimed that she was estopped by her admissions made while- she was an infant. The court held that the declaration could not be resorted to in order to uphold an agreement which depended upon her affirmance after she became of age to give validity to it, The court said (at p. 313): “ The question is whether acts and declarations of an infant during infancy can estop him from asserting the invalidity of his deed after he has attained his majority.” The court further said that the conveyance itself “is an assertion of his right to convey,” and nothing is added to it by a contemporaneous admission.
The recitals in the agreement amount to an admission or declaration by Mrs. Smith that she owed the plaintiff for services while under age, at which time she had reached sufficient maturity to comprehend the scope and force of the declaration, and it is competent evidence against her tending to establish a consideration for the agreement: When Mrs. Smith became of age she ratified the agreement; not a portion, but the agreement as it existed, That
"Of course, the agreement was in no part valid during the infancy of Mrs. Smith, and its validity depended upon her own conduct after she became of. age. Its affirmance, or disaffirmance rested entirely with her, and she elected to make this precise agreement valid and binding against her.
The agreement was executed in this State. It was expected to be performed here. The plaintiff was á resident of New .York, and this had been the home of Mrs! Smith. The services had been rendered here. Mrs. Smith’s property was in this State, and in part, at least, remained invested here. . After she became of age she was in this country and directed her .agent to pay the allowance to Miss Parsons, so .the initial ratification was in the' State of New York. The confirmation of the agreement by Mrs. Smith made it operative from its inception. In these circumstances the agreement is to be governed by the laws of' the State of New York.
The effect of the bequest in'the will of'Mrs. Smith for the benefit of the plaintiff is. not beforp us. That provision may have been intended as a substitute for the allowance fixed by the agreement. No such defense is pleadpd, and no suchf question is suggested in the brief. Thereds nothing in the record to indicate -that Miss Parsons is claiming both .provisions. If such is her position,, and the effect of the will upon the- contract were to be considered u23on this appeal, an entirely different situation might be presented. In' any event the plaintiff has elected to enforce the agreement. If she is not entitled to take' pursuant to the will, and also recover upon the contract, her election ■ has been. made. (Caulfield v. Sullivan, 85 N. Y. 153.)
There is ho proof that the trust bequest under _ the will- has been set apart for the benefit of the plaintiff, or that any 23ayment or tender of payment pursuant to its terms has beén macte. There is no warrant in the record for the statement that she is seeking to recover $3,600.
We have simply tO' determine the validity of the agreement, with the inferences and facts, so far as they are conflicting, resolved. in favor of 'the plaintiff, and we eannot be led away from this plain
The judgment should be affirmed, with costs.
1 All concurred, except McLennan, P. J., and Nash, J., who- dissented in an opinion by McLennan, P. J.