for insanity. The transaction may, therefore, be ratified.o1 What constitutes ratification gives rise to the same question as in the case of insanity, and, therefore, a failure to disaffirm the transaction within a reasonable time after becoming sober will, unless the drunkard remains ignorant of what he' did when intoxicated, amount to a ratification.92 If goods are bought when drunk and kept when sober, the buyer must pay the price. The same reasons that require return of consideration as a condition precedent to the avoidance of a lunatic's bargain apply with even greater force to the case of an intoxicated person,93 and if the consideration is not restored the drunkard may be sued for it.94 Even though the drunkard should have spent or wasted the consideration while intoxicated, the rule should not be relaxed unless the person dealing with the drunkard knowingly took fraudulent advantage of his condition.95

§ 261. Bona fide purchasers.

As the lack of intelligence of an intoxicated person is his own fault, his privilege of avoiding a bargain made while intoxicated should not enable him to regain property transferred by him and subsequently transferred to one who paid value for it in good faith without notice of the circumstances under which it had been acquired from the original owner, or

91 Matthews v. Baxter, L. R. 8 Ex. 132; Johnson v. Harmon, 94 U. S. 371, 24 L. Ed. 271; Oakley v. Shelley, 129 Ala. 467, 29 So. 385; Sellers v. Knight, 185 Ala. 96, 64 So. 329; Strickland v. Parlin & Orendorf Co., 118 Ga. 213, 44 S. E. 997; Hawley v. Howell, 60 Iowa, 79, 14 N. W. 199; Carpenter v. Rodgers, 61 Mich. 384, 28 N. W. 156, 1 Am. St. Rep. 595; Easton's Adm. v. Perry, 29 Mo. 96; Smith v. Williamson, 8 Utah, 219, 30 Pac. 753. But see Newell v. Fisher, 11 Sm. & M. 431, 49 Am. Dec. 66; Berkley v. Cannon, 4 Rich. L. 136.

92 Wright v. Waller, 127 Ala. 557, 29 So. 57, 54 L. R. A. 440; Mansfield v. Watson, 2 Iowa, 111; Youn v. Lamont, 56 Minn. 216, 57 N. W. 478;

Spoonheim v. Spoonheim, 14 N. Dak. 380, 104 N. W. 845; Bush v. Breinig, 113 Pa. St. 310, 316, 6 Atl. 86, 57 Am. Rep. 469; Fowler v. Meadow Brook Co., 208 Pa. St. 473, 57 Atl. 959; Williams v. Inabnet, 1 Bailey, 343; Smith v. Williamson, 8 Utah, 219, 30 Pac. 753. Contra, Reinskopf v. Rogge, 37 Ind. 207.

93 Joest v. Williams, 42 Ind. 565, 13 Am. Rep. 377; Fowler v. Meadow Brook Co., 208 Pa. St. 473. Compare Thackrah v. Haas, 119 U. S. 499, 7 S. Ct. 311, 30 L. Ed. 486.

94 Haneklau v. Felchlin, 57 Mo. App. 602.

95 Compare Thackrah v. Haas, 119 U. S. 499, 7 S. Ct. 311, 30 L. Ed. 486.

to escape liability to a holder in due course of negotiable paper made by him. The latter question has arisen several times and it has been said that the better opinion supports the right of the maker, if his drunkenness is so complete as to suspend all rational thought, to set up his condition as a defence even against such a holder.96 Most modern decisions, however, with good reason, take the opposite view.97 In the case of ordinary chattel property, as in the case of negotiable paper, if a title voidable for a cause personal to the original grantee is transferred to one who pays value without notice of the voidable character of the title, an indefeasible title is created. It has already been argued and reasons have been given for confining a drunkard's right of avoiding his contracts to such as were made with persons who knew of his condition.98 The same reasons should protect a bona fide purchaser. Under the Uniform Sales Act it is clear that there can be no right to avoid a voidable title after the property has been acquired by a bona fide purchaser for value without notice.99

§ 262. Necessaries.

For the same reason and to the same extent as in the case of lunatics, intoxicated persons are liable on principles of quasi-contract for necessaries which have been furnished to them.1

§ 263. Fraud upon intoxicated persons.

Bargains made with intoxicated persons are peculiarly likely to have been induced by fraud. No different legal principle covers such cases from that applicable to all cases

96 Daniel on Negotiable Instruments, 214, quoting from Gore v. Gibson, 13 M. & W. 623. "It is just the same as if the defendant had written his name on the bill in his sleep in the state of somnambulism." To the same effect see Green v. Gunsten, 154 Wis. 69, 142 N. W. 261, 46 L. R. A. (N. S.) 212.

97 Page v. Krekey, 137 N. Y. 307, 33 N. E. 311, 21 L. R. A. 409, 33 Am. St. Rep. 731; State Bank v.

McCoy, 69 Pa. St. 204, 8 Am. Rep. 246; McSparran v. Neeley, 91 Pa. St. 17; Smith v. Williamson, 8 Utah, 219, 30 Pac. 753. See also Miller v. Finley, 26 Mich. 249, 12 Am. Rep. 306. 98 Supra, § 259.

99 Sec. 24. See supra, 233.

1 Gore v. Gibson, 13 M. & W. 623; McCrillis v. Bartlett, 8 N. H. 569; Van Horn v. Hann, 39 N. J. L. 207; Brockway v. Jewell, 52 Ohio St. 187, 39 N. E. 470.

of fraud, but in view of the obvious impropriety of entering into a bargain with an intoxicated person, such a transaction should be closely scrutinized. It is, of course, not essential in order to make out a case of fraudulent advantage to show that the intoxication was sufficient altogether to overthrow the reasoning powers if it was sufficient to diminish the intelligence, and the party dealing with the intoxicated person knowingly made use of the situation in order to induce the bargain. If such a case has been made out the transaction may be set aside in any proceeding against the fraudulent party. Especially if the intoxication was brought about by the other party is there ground for suspecting the good faith of the transaction and reason for setting it aside.3

2 Say v. Barwick, 1 Ves. & B. 195. Cooke v. Clayworth, 18 Ves. 12; Holland's Adm. v. Barnes, 53 Ala; 83, 25 Am. Rep. 595; Murray v. Carlin, 67 Ill. 286; Henry v. Ritenour, 31 Ind. 136; Warnock v. Campbell, 25 N. J. Eq. 485; Baird v. Howard, 51 Ohio St. 57, 36 N. E. 732, 22 L. R. A. 846, 46 Am. St. Rep. 550; Birdsong v. Birdsong, 2 Head, 289; Jones v. McGruder, 87 Va. 360, 12 S. E. 792.

3 Johnson v. Medlicott, 3 P. Wms. 130, note; Wilcox v. Jackson, 51 Iowa, 208, 1 N. W. 513; Newell v. Fisher, 11 Sm. & M. 431, 49 Am. Dec. 66; O'Conner v. Rempt, 29 N. J. Eq. 156; Dunn v. Amos, 14 Wis. 106. In Cook v. Bagnell Timber Co., 78 Ark. 47, 54, 94 S. W. 695, the court said: "In general, courts of equity, as a matter of public policy, do not incline on the one hand to lend their assistance to a person who has obtained an agreement or deed from another in a state of intoxication; and, on the other hand, they are equally unwilling to assist the intoxicated party to get rid of his agreement or deed merely on the ground of his intoxication at the time. They will leave the parties to their ordinary remedies at law, unless there is some fraudulent contrivance or some

imposition practised.' 1 Story, Eq. Jur., § 231.

"The rule deducible from this statement, and from all the authorities, is that the contract of a person partially intoxicated at the time will not be set aside because of his intoxication. That condition results from his own act, and entitles him to no consideration whatever in either a court of law or of equity. It is not because of his intoxication that courts will annul the contract, but because of some fraud or imposition perpetrated by the person who takes advantage of his condition to make a contract with him. The courts merely grant relief from the fraud or imposition perpetrated. Therefore, while the inadequacy or excessiveness of the consideration for the contract may be a circumstance tending to establish the perpetration of a fraud, it does not, of itself, when good faith is affirmatively shown, constitute such a fraud or imposition as will afford grounds for setting aside a contract. Birdsong v. Birdsong, 2 Head (Tenn.) 290.

"This view, it is argued, puts a partially intoxicated person upon precisely the same plane as a perfectly sober man, with reference to his right to

American statutory modifications of the common law relating to the con

The incapacity of married women at common law may be considered in connection with their rights and liabilities under contracts, and as affecting attempted transfers of property to or by a married woman.

§ 265. Rights and liabilities under contracts.

1

A married woman, during the life of her husband could not bind herself by a contract, nor by representing herself as unmarried or a widow, render herself by estoppel liable on an agreement. If she were liable upon a contract at the time of her marriage the liability upon this contract passed to her husband. Upon such ante-nuptial liabilities, however, the husband could not be sued alone,3 and if the wife died before judgment had been recovered against both, the husband's liability was discharged, except so far as he might have assets in his hands as her administrator. If the

1 Com. Dig. Baron & Feme (Q); James v. Fowks, 12 Mod. 101.

2 Cannan v. Farmer, 3 Exch. 698; Liverpool &c. Assoc. v. Fairhurst, 9 Exch. 422; Wright v. Leonard, 11 C. B. (N. S.) 258; First Nat. Bank v. Shum

ard, 91 N. J. L. 379, 103 Atl. 1001. And see supra, § 245.

3 Garrard v. Guibilei, 13 C. B. (N. S.) 832.

4 Com. Dig. Baron & Feme (C. 2). 5 Woodman v. Chapman, 1 Campb. 189.