See, e.g., Knudson v. General Motorcycle Sales Co., 1918, 230 Mass. 54, 119 N.E. 359. He must, of course, disaffirm the contract during minority, or within a reasonable time after reaching majority. Compare Welch v. King, 1932, 279 Mass. 445, 450-552, 181 N.E. 846, with Chamberlain v. Employers' Liability Assurance Corp., 1935, 289 Mass. 412, 418-419, 194 N.E. 310. The defendant asserts that plaintiff's first disaffirmance, in spite of its being framed in the past tense, was his affidavit of March 17, 1959, in which he stated "I have disavowed * * *," and that over two years is an unreasonable delay.
However, this statute, enacted in 1845 (St. 1845, c. 208, § 1), was designed to abrogate the old common law doctrine that precluded a man and a woman from entering into an enforceable contract with each other to be performed during their subsequent marriage. Welch v. King, 279 Mass. 445, 448 (1932). See Miller v. Goodwin, 8 Gray 542 (1857); Gibson v. Gibson, 15 Mass. 106, 111 (1818); 1 W. Blackstone, Commentaries 430 (1765).
Whether the plaintiff was emancipated, whether the automobile was a necessary, or whether the disaffirmance was timely are all factual questions to be resolved at trial. See, for example, Welch v. King, 279 Mass. 445, 450 (1932). As to the request for relief on the ground of minority at least, the demurrer should have been overruled.
The general rule is that contracts of minors are voidable at the option of the minor in accordance with the policy of the law to afford protection to minors from their own improvidence and want of sound judgment. McCarthy v. Henderson, 138 Mass. 310. Morse v. Ely, 154 Mass. 458. Tracy v. Brown, 265 Mass. 163. Welch v. King, 279 Mass. 445. Adamowski v. Curtiss-Wright Flying Service, Inc. 300 Mass. 281. See Slayton v. Barry, 175 Mass. 513; Brooks v. Sawyer, 191 Mass. 151.
This suit is brought against a defendant who was a minor at the time of the alleged contract and sale. Infancy is a good defense to such a suit and a plea of infancy is a sufficient disaffirmance and repudiation of the contract. Roberts v. Wiggin, 1 N.H. 73; Heath v. West, 26 N.H. 191, 199; Welch v. King, 279 Mass. 445, 452, 181 N.E. 846; Tucker v. Moreland, 10 Peters 58 at 71 and 72, 9 L Ed 345; also Gilson v. Spear, 38 Vt. 311 at 315, and Doran v. Smith, 49 Vt. 353, 354, cited in the original opinion. The case of Gilson v. Spear, supra, is similar to the case at bar.
The plaintiff insists that the finding of the judge that the agreement was made as alleged in the fifth paragraph of the bill "that the parties would share and own said assets one half each" refers to an agreement made before the marriage of the parties, and that this antenuptial agreement should now be enforced in equity to give the plaintiff title to a half interest in all the real estate standing in the defendant's name. See Miller v. Goodwin, 8 Gray, 542, 543-544; Sullings v. Sullings, 9 Allen, 234, 237; Tarbell v. Tarbell, 10 Allen, 278; Freeland v. Freeland, 128 Mass. 509, 511; Paine v. Hollister, 139 Mass. 144, 145; Deshon v. Wood, 148 Mass. 132, 134-135; Collins v. Collins, 212 Mass. 131; Welch v. King, 279 Mass. 445, 448-449. For reasons that will shortly appear, we need not decide whether an oral agreement of this kind, if made before the marriage of the parties, in so far as it relates to property of which the parties were "seized or possessed at the time of the marriage," would be "impliedly prohibited" by G.L. (Ter.
Ratification of the action of her mother in making the contract, if that was necessary, may be found in the fact that the plaintiff has continued to prosecute this suit, which was commenced a few months before she became twenty-one years old. Eaton v. Libbey, 165 Mass. 218. Welch v. King, 279 Mass. 445. Dellamano v. Francis, 308 Mass. 502. The defendant contends that notice of the contract to the mother would not be notice to the plaintiff any more than notice to the parent would be sufficient to give the child an equitable interest in an oral trust of personalty.
Green v. Green, 69 N.Y. 553, 557. Sternlieb v. Normandie National Securities Corp. 263 N.Y. 245. Hook v. Harmon National Real Estate Corp. 250 App. Div. (N.Y.) 689. See also Welch v. King, 279 Mass. 445, 450 et seq. The finding of the judge that disaffirmance was within a reasonable time must stand. The trial judge found: "The plaintiff failed to qualify as a private pilot, or as a limited commercial pilot, although he had taken examinations for same. He has been unable to obtain work in any commercial flying service as a result of having taken this course.
The youngest child became of age in 1929 and there is no suggestion of any repudiation of the payments by any of the children until their appearance was entered in these proceedings in 1934. See Barnaby v. Barnaby, 1 Pick. 221; Welch v. King, 279 Mass. 445, 450. For the purpose of this decision we assume that in general an administrator should not make payments out of personal property which are not payments of debts but which are intended to protect the interest of the heirs in real estate of the deceased.
Ed.) c. 209, § 25. See Welch v. King, 279 Mass. 445, 449. Postnuptial contracts may change the rights of parties with respect to property and to cohabitation provided they are fair, made with due formality, and contemporaneously with or after an actual separation. Terkelsen v. Peterson, 216 Mass. 531. Aitchison v. Chamberlain, 243 Mass. 16, 21.