Page:Harvard Law Review Volume 1.djvu/412

 to the liability of infants for tort are those arising out of sales. Two cases may be put to illustrate the point.

1. An infant agrees to deliver ten casks of wine, and receives the price for them in advance. He delivers ten casks containing a mixture of water and wine.

2. An infant having ten casks filled with a mixture of water and wine and knowing their contents, sells them as containing pure wine.

In the first case the infant is clearly not liable. He has simply broken a contract to deliver the wine. He might have availed himself of his infant’s privilege by refusing to deliver anything, and incurred no liability for the breach of contract, though if he retained in specie the price paid, it might, of course, be recovered. A fortiori there is no liability if, instead of wholly repudiating the contract, the infant delivered goods of inferior quality. There is no tort, but simply a breach of contract.

But in the second case, instead of breaking a contract, the infant has induced by fraud the formation of one, and it might well be held that he should be liable. There is a reason why the infant should be protected from his promises, but there is no reason why he should be protected from his lies.

This distinction, however, is not taken. On both sides of the water it is held that an infant is not liable for a warranty known to be false. Green v. Greenbank, 2 Marsh. 485; Gilson v. Spear, 38 Vt. 311.

Although this is well settled, it is hard to reconcile with cases which have held an infant liable for purchasing goods on credit, intending at the time of the sale not to pay for them. Wallace v. Morss, 5 Hill, 391; Mathews v. Cowan, 59 Ill. 341. The gist of the liability seems to be that the infant fraudulently induced the plaintiff to make a sale or a contract, but this is equally true in the case of a warranty known to be false.

Consider also, in this connection, the liability of an infant for representing himself to be of age and thereby inducing a sale. In Johnson v. Pie, 1 Lev. 169, it was held that the infant was not liable, but in Fitts v. Hall, 9 N.H. 441, it was held that he was liable for misrepresenting his age. Now, assuming that an infant is not liable for a false warranty or false representations as to goods, it is difficult to see why he should be liable for a false statement in regard to himself. Consistency would require that infancy be held a good defence. In equity the question is treated in a curious way. It is said that the infant is estopped to say that he was not of age. In Ex parte Unity Joint-Stock Banking Association, 3 DeG. & J. 63, it was held that contracts made by means of false representations of his age could be proved against an infant’s estate. It is certainly undesirable and unjustifiable upon principle that the rule should be different in equity and at law.