47 N.J.L. 457 | N.J. | 1885
The opinion of the court was delivered by
An action of debt was brought in the court for the trial of small causes by Jacob M. Patterson against Barclay Lippincott, to recover the balance, $75, claimed under a contract in writing for the sale of the exclusive right to use, manufacture and sell the plaintiff’s patent “air-heáting attachment,” in Atlantic county, New Jersey. The writing was signed “ Geo. P. Lippincott, per Barclay Lippincott,” on the part of the purchaser. The state of demand avers that by virtue of this agreement the plaintiff did in due form convey said patent right to said George P. Lippincott, that said
The averment that the plaintiff never had any contract or ■ negotiations with George, is not sustained by the proof, for the testimony of Joseph N. Risley, the agent who made the sale, which is the only evidence on this point that appears in the case, is, that the defendant told him he was going out of business and intended to transfer it to George; requested him to see George; he did so; talked with him ; he looked at the patent; was satisfied with it, and talked with his father about buying'it. The deed for the patent right in Atlantic county was drawn to George P. Lippincott. It is proved by the admission of the defendant, Barclay Lippincott, that at the time of such sale and transfer his son George was a minor. This admission is competent testimony in this suit against him.
A verdict of a jury was given for the plaintiff against the defendant in the court for the trial of small causes; and on the trial of the appeal in the Court of Common Pleas there was a judgment of nonsuit against the plaintiff. The reason for the nonsuit does not appear on the record, but the counsel have argued the cause before us on the case presented by the pleadings and proofs, the contention being here, as it was below, that the plaintiff could not aver and show the infancy of George P. Lippincott, and bring this action against Barclay Lippincott, as principal in the contract, in contradiction of its express terms.
On the face of the written agreement George P. Lippincott is the principal and Barclay Lippincott the agent. The suit on the contract should therefore be against the pi’incipal named, and not against the agent, unless there be some legal cause shown to change the responsibility. The cause assigned
Later cases have held that an agent is not directly liable on an instrument he executes, without authority, in another’s-name; that the remedy in such case is not on the contract, but that he may be sued either for breach of warranty or for deceit, according to the facts of the case. Jenkins v. Hutchinson, 13 Q. B. 744; Lewis v. Nicholson, 18 Q. B. 503; Baltzer v. Nicolay, 53 N. Y. 467; White v. Madison, 26 N. Y. 117, and many other cases collected in the notes in Whart. on Agency, §§ 524, 532, and notes to Thomson v. Davenport, 9 B. & C. 78, in 2 Sm. Lead. Cas. *358 (Am. ed.) Andrews, J., in Baltzer v. Nicolay, supra, says: “The-ground and form of the agent’s liability in such a case has been the subject of discussion, and there are conflicting-decisions upon the point; but the later and better-considered opinion seems to be, that his liability, when the contract is made in the name of his princpal, rests upon an implied warranty of his authority to make it, and that the remedy is by an action for its breach.”
Although the state of demand in the present case is uniformly drawn, there is in the last sentence a charge that the defendant’s warranty of authority in pretending to act for said minor is broken, whereby an action has accrued. This alleged
It was argued in Whiting v. Dutch, 14 Mass. 457, that a promissory note signed by Dutch for his partner, Green, who was a minor, was void as to Green, because he was not capable of communicating authority to Dutch to contract for him, and that, being void, it was not the subject of a subsequent ratification. But the court held that it was voidable only, and having been ratified by the minor after he came of age, it was good against him. See Tyler on Inf., ch. III, §§ 14, 18.
Another answer is, that the defence of infancy to this contract with the plaintiff can only be set up by the infant himself, or those who legally represent him. Infancy is a personal privilege of which no one can take advantage but himself. Voorhees v. Wait, 3 Gr. 343; Tyler on Inf., ch. IV., § 19; Bingham, on Inf. 49.
In this case the plaintiff seeks to disaffirm the infant’s contract with him, in his own behalf, and sue a third party on the contract, whose authority to bind him the infant has not ■denied. The privilege of affirming or disaffirming the contract belongs to the infant alone, and the plaintiff cannot exercise it for him. The mere refusal to pay, charged in the ■demand and proved, is not a denial of the defendant’s authority to bind the infant, for it may be based on the failure of ■consideration, the invalidity of the patent, fraudulent representations or other causes.
The judgment of nonsuit entered in the Court of Common Pleas will be affirmed.