Opinion by
Beaver, J.,The legal plaintiff was not only the cashier but a partner and apparently the only managing partner of the firm doing business as the Bank of Dubois. He had undoubted authority, therefore, to make the agreement, in and by which a note due by defendant was charged or agreed to be charged to Harry Loeb in pursuance of a previous arrangement between plaintiff and defendant. The latter’s testimony in regard to the transaction, in brief, is this: “ I told Mr. Wise to charge the note up to me, if it was satisfactory; and Mr. Wise said ‘ All right ’ and then Norman asked him for his note and his collateral — his building and loan stock — and Mai handed him out his building and loan stock that seemed to be laying to one side of the window, and said he didn’t have the note now and would hand it to him as soon as he found it — he was busy then. Q. What was said, if anything, about Norman’s relation to the note from that time on? A. Norman’s relation to the note was nothing. It was charged to me. I considered I owed it and not him.”
The court below treated this as an executory contract, held to be so apparently because the note of the defendant was not delivered to him at the time of the transaction above referred to. As we view the matter, however, it was not an executory contract. The transaction was completed, so far as the plaintiff and the defendant were concerned. The collateral security for the note was delivered and the note would undoubtedly have been delivered with it, if it had been within reach. It was not delivered simply because it had been mislaid. The fact that Harry Loeb, who became responsible for the payment *604of the note, had an overdrawn account at the time, makes no difference, so far as the contract was concerned. The testimony-shows that he had given a mortgage to protect the bank against overdrafts and, if the cashier and partner was willing to accept him for the payment of the note and discharge the defendant, and did so, the transaction was complete and the defendant was discharged. The question as to whether or not this was the case was at the least for the jury, and we think it was error to pass upon it as a matter of law and direct the jury to find for the plaintiff.
The question as to the defendant’s minority, when the contract, of which the note was evidence in part, was entered into, and his right to avoid it for that reason, was, we think, properly disposed of by the court below. “When the infant attains majority and does not mean to stand by a contract made in infancy, his proper course is to disaffirm it by an act as solemn as that by which it was made; and ratification may be inferred from his failure to disaffirm within a reasonable time after coming of age, as well as from positive recognition of the contract: ” 8 P. & L. Dig. of Dec. 13997. The defendant had an opportunity to be heard in disaffirmance of his contract, when he presented his petition to the court to have the judgment opened. It was his duty, when first called upon to speak, to disaffirm the contract, if he intended to avoid it by reason of his minority. His failure to do so must be regarded as an affirmance. It was too late to raise the question upon the trial.
Judgment reversed and a new venire awarded.