Christian

A vigorous petition for rehearing has been filed. We deem it advisable to discuss only a few of the points presented.therein.

First. We held that “contracts-made by an incompetent are void because an incompetent is incapable of giving the required assent thereto.” We further held that a grant of relief against a contract does not follow a mere showing that the contract is void, and that “the situation of the parties is the controlling factor” in determining whether relief should or should not be granted. Heretofore, the majority of the courts have reached' the same result on the ground that an incompetent person's contract is voidable. We were, and are, unwilling to accept that reasoning because, we believe, an incompetent person “is incapable of giving the required assent.” Under such circumstances it is inconsistent to say that an. incompetent at one time could give or manifest the required' assent, and later at his request say that he could not. Such inconsistency does not appear, when we consider such a contract as invalid, and determine whether relief will be granted by the position of the parties as explained in the opinion.

In this connection;, we neither said nor implied…