27 Minn. 56 | Minn. | 1880
The testimony in this ease fairly tended to* show the following facts: JohnWann, as guardian of Thomas L.Wann, his minor son, 16 years of age, executed what purport to be sealed articles of partnership between said Thomas and one Von Deyn. The business of the firm was the manufacture of brushes, in St. Paul. JohnWann had no authority to act for his son in the premises, either as guardian or otherwise, and there was no evidence establishing any adoption or ratification by the son of his father’s acts, either in executing the articles, or in carrying on the business. The articles required said Thomas to put $5,000 into the capital of the concern. This was in fact put in by JohnWann, out of his own means. By the eighth article of the partnership-agreement, it was agreed that, in the absence of Thomas, who was in Europe, John Wann should keep the firm books; and, in the tenth article, John Wann is acknowledged to have-power, as the guardian of Thomas, to represent his interest; to act for the firm the same as if Thomas were present and acting; to sign checks, draw drafts, sign notes, adjust accounts, — all in the firm name; and to receive all moneys-that Thomas might be entitled to from the firm; and, generally, to have the same authority and control over the business of the firm as Thomas would have, if he were present and acting. The entire business of the firm was, in fact, con ducted by Von Deyn and John Wann. All moneys drawn
All this goes to show that John Wann and Von Deyn established a partnership in fact, Von Deyn acting for himself, and John Wann nominally (but without any authority) for his minor son, who never ratified or adopted what was assumed to be done for him; that John Wann furnished the capital, took part in conducting the business, and drew money out of the concern, at the rate of $65 per month, and appropriated the same to his own use. These facts go to prove that, whatever might have been John Wann’s real intention, the effect of his conduct, as respected third parties, was to constitute a partnership between Von Deyn and himself, of which Thomas Wann was not a member. What would have been the effect of a ratification or adoption by Thomas of what was done by his father, we do not attempt to determine. It was very proper for the plaintiff, upon this state of the evidence, to dismiss the action as respected Thomas Wann; but as he had declared against a partnership consisting of Von Deyn, Thomas Wann and John Wann, it would have been very proper for him to have amended his complaint to correspond with the state of the proof.
According to the rule laid down in Fetz v. Clark, 7 Minn. 159 (217,) the complaint setting up a contract by a partnership composed of Von Deyn, Thomas Wann and John Wann, there could be no recovery, except against the partnership so constituted. Some doubt was expressed as to the propriety of the rule in Town v. Washburn, 11 Minn. 268, and we think the case at bar very well illustrates the injustice of its operation. If it was technically correct, it certainly did not tend to promote substantial justice. At any rate, it has been abrogated by Laws 1873, c. 67, (Gen. St. 1878, c. 66, § 266,)
Order affirmed.