¶1delivered the opinion of the Court,
¶2When the plaintiff’s bid was accepted the bargain was struck, and there was an oral agreement for the sale and purchase of the land on the terms stated in the conditions of sale. That agreement was not void, but voidable. Neither party could have compelled specific performance. Either would have a right of action for damages resulting from non-performance by the other; but the vendor could not tender a deed and recover the purchase money, for that would be enforcing specific performance ; he could only recover the actual loss.
¶3Upon the signing of the conditions, prima facie, there was a contract that could be specifically enforced. Money paid on either the oral or written contract could not be recovered unless there was cause for rescission. Here, it is conceded that there was an oral contract; but the plaintiff denies that he made a written contract and paid money and note thereon, because at the time his signatures and money were given he was incapable of making a contract by reason of drunkenness. If he was without reason and understanding the payment of the money ought not to be treated as voluntary, nor his signature as creating a new obligation. The conditions of sale may have been read in his hearing at the auction, and he may have understood them when he bid ; but he paid no *316money until the time of signing the alleged contract, and if he was then bereft of reason he may avoid the apparent obligation made while in that condition.
¶4It is not a question whether what he did was the carrying out of a fair and reasonable oral contract, or whether the property was worth the sum bid ; it is a question of his capacity to make a contract at the time he signed the conditions and paid the money. The subject of the contract was not necessary for himself or family; he took nothing into his possession and, therefore, had nothing to restore in the act of rescission; and he brought suit so promptly that' at the trial the question of delay in rescinding was not raised.
¶5The rule formerly was, that intoxication was no excuse, and created no privilege or plea in avoidance of a contract; but it is now settled according to the dictate of good sense and common justice, that a contract made by a person so destitute of reason as not to know the consequences of his contract, though his incompetency be produced by intoxication, is voidable, and may be avoided bjr himself, though the intoxication was voluntary, and not procured by the circumvention of the other party: Kent’s Com., vol. 2, p. 451. A drunkard when in a complete state of intoxication, so as not to know what he is doing, has no capacity to contract in general; but his contract is voidable only and not void, and may therefore be ratified by him when he becomes sober : Benjamin on Sales, § 33.
¶6The learned Judge of the Common Pleas instructed the jury that the plaintiff could recover only on the ground that the contract did not bind him because he was intoxicated to a degree that he did not know what he was doing at the time he affixed his seal and gave the money; that if he was in such a state of drunkenness as not to know what he was doing he cannot be compelled to perforin the contract; and that if at the time of signing the contract he was able to comprehend the nature and effect thereof, the alleged intoxication is no defence. All that accords with principles so well settled as to be found in approved text books. They apply to a case like this; not where an intoxicated man gave his negotiable paper which had passed to an innocent holder for value, as was the case in State Bank v. McCoy, 69 Pa. St., 204.
¶7In answer to the defendant’s first point the Court charged, that the drunkenness of the plaintiff to relieve him from the contract must have been such that he did not know what he was doing; it must have- been such as to suspend the use of reason and understanding. There is no error in that. True, the word “utterly” is omitted, which is used in the defining of the state of drunkenness, in Story’s Eq. Jur., § 231; but the sense is not materially different; and that word is omitted *317by many in the attempt to define the degree of intoxication and absence of reason. The point was well answered ; its simple affirmance might have misled the jury ; “ unfair advantage ” was not a question submitted.
¶8The fifth assignment is not sustained. Although the question ought not to have been allowed when put, for the reason stated in the objection, very soon there was testimony that the witness was intoxicated at the time referred to in the question. No objection was made to its form, and its admission out of order was harmless.
¶9None of the remaining assignments require special remark.
¶10Judgment affirmed.