This is a case, undoubtedly, of some difficulty. It is that of a note attested, negotiable in its terms, given by a minor but retained by the promisee, unindorsed, and sued after the promisor came of age.
The court are of opinion, in the first place, that such a note, so far as it constitutes a contract between the promisor and promisee, is not void, but voidable only; because, in any action brought on it, the consideration is open to inquiry, and, if given for goods, it will be competent to inquire both whether the goods were necessaries, and the just value nf them, and judgment may be rendered, pro tanto, for that *390part of the note only for which a minor would be legally liable. An action will lie, on an express contract of a minor to pay for necessaries, as well as on an implied one, where the contract is of such a nature, as to leave the question of consideration open to inquiry. Stone v. Dennison, 13 Pick. 1.
That in an action by promisee against promisor, the consideration may be fully inquired into, and judgment given for that part of the note only for which there was a good consideration, was decided in the cases of Parish v. Stone, 14 Pick. 198, and Harrington v. Stratton, 22 Pick. 516.
The distinction between the contract which subsists between promisor and promisee, on a note payable to order, but not indorsed, and that which would subsist between the promisor and an indorsee after an indorsement to a third person, is recognized and illustrated in the case of Thurston v. Blanchard, 22 Pick. 18. The difference is most important, as it applies to the present case. In the former, suppose it a note given on the sale of goods, it is a mere simple express contract to pay the price of the goods, and is itself rescinded by any thing that rescinds the sale. In the latter it is an absolute contract to pay the sum stipulated, in which, in general, there can be no inquiry respecting the consideration.
Under these views, we consider this note, in the hands of the promisee, as the simple contract of the defendant for the payment of money ; and there being no consideration expressed, the infancy of the promisor, being shown, is prima facie a bar to the action. But as the consideration is open to inquiry, we think it is competent for the plaintiff to show that it was given .for the price of necessaries, in which he will recover only so much of the note as shall appear to have be'en given for necessaries, at their fair value, without regard to the price stipulated to be paid by the minor.
This being a note valid as between the parties, we think it is saved from the operation of the statute of limitations, by the proviso that it shall not apply to any action brought *391upon a promissory note which is signed in the presence of an attesting witness, if brought by the original payee. Rev. Sts. c. 120, § 4. The attestation by a witness does not vary or affect the obligation of the contract, and requires no increased capacity or discretion to make it, but only remotely affects the remedy upon it; and there seems to be no reason why it should not apply as well to the note of a minor, when he has power to make one, as to that of a person of full age.
The only other question was, whether the books of the plaintiff — his day book and leger — as testified of by the clerk, were properly admitted. We think the books were competent for the purpose, and to the extent for which they were used. They were used to prove the specific items for which the note was given. The witness first stated that the note was given for the balance of an account standing on the plaintiff’s books, and then turned to the books, and stated to the jury the several articles of which the account was composed. The case supposes that the defendant was present, saw the account and the balance, and, by giving his note, admitted the receipt of the articles. To this extent, his admission was competent evidence ; but not as to the nature and character of the articles, whether necessary or not, nor as to the value, whether charged at fair prices or not. All that was open to be considered by the court and jury. The court are of opinion that the books were rightly admitted, for the purposes for which they were offered and used, and that the instructions of the judge were correct.
Exceptions overruled.