13 Barb. 536 | N.Y. Sup. Ct. | 1852
The pleadings admit that Pattison, an infant, was a copartner with the two defendants, and a party to the contract; and the question presented for de
The plaintiffs rely on the case of Burgess v. Merrill, (4 Taunt. 468.) That was a case where a bill of exchange had been accepted by the firm of Merrill & Le Blond. Le Blond was an infant, and Merrill was sued alone. He pleaded in abatement the non-joinder of Le Blond, and the plaintiff replied that Le Blond was an infant; to which replication the defendant demurred, and judgment was given for the plaintiff. It will be observed that though the same question was raised by the pleadings, and in the same form, as in this case, the action was brought upon a different kind of contract, viz. the acceptance of a bill of exchange, and with regard to that particular species of contract the promise was then held void and not voidable. And Sir James Mansfield in giving his judgment put it expressly on the ground that it was void. He said he “ could never understand the doctrine that the contracts of infants were voidable only and not void.;” and he added, “ it is an extremely familiar doctrine, resulting upon all deeds and instruments, that they operate to form a contract according to their legal effect: this is therefore a binding contract as to the adult, though void as to the infant. And it is extremely proper to say that the plaintiff may safely overlook the privity of the infant, as to whom the contract is nu
The opinion that such a contract was void was very strongly expressed by that same judge, on the trial before him of Williamson v. Watts, (1 Camp. 552.) That suit was also brought on the acceptance of a bill of exchange, and the defendant was an infant. Sir James Mansfield said, “ did any one ever hear of an infant being liable as an acceptor of a bill of exchange ?” He added that “ an infant could not accept a bill of exchange, even for necessaries,” and directed a nonsuit.
I concur entirely in the correctness of the decision in Burgess v. Merrill, if the contract was void, as it was there adjudged to be. But the reasoning is entirely inapplicable to the case under consideration, where the contract is not void but voidable. The later authorities hold that an acceptance by an infant is voidable only. (Hunt v. Massey, 5 Barn, & Adol. 902.) If the reason for the decision has ceased, the decision falls with it.
In giving the opinion in Burgess v. Merrill, Sir James Mansfield alludes to the case of Chandler v. Parks & Danks, (3 Esp. 76,) in which Kenyon, Oh. J. nonsuited the plaintiff, and said a new suit must be brought against Parks the adult, alone, it appearing omthe trial that Danks was an infant; and also to the case of Jaffray v. Keelner, (5 Esp. 47,) in which Ld. Ellen-borough followed the same doctrine. The decision was therefore made on the supposition, if not on the ground, that if Burgess had sued both Merrill and Le Blond, and the latter had availed himself, on the trial, of his infancy, that the plaintiff would fail in that suit, as to both defendants, and be driven to a second action against Merrill alone. Without inquiring whether such inconvenience would be a good reason for not deciding a cause according to well settled légal principles, it is enough to say that such at all events is not now the law. In Hartness v. Thompson, (5 John. 160,) both the cases in 3 Esp. 76, and 5 Esp. 47, were overruled by the supreme court of this state. The court said, “ These decisions were at nisi prius, and we are inclined to adopt a different, and as we apprehend more convenient rule.” And the court then proceeded to lay down the rule that where a
Under our late practice the plaintiff was not only permitted to enter a nolle prosequi as to one of several defendants who availed himself, on the trial, of his infancy, but it might be done without paying costs ; (Ex parte Nelson, 1 Cowen, 417;) and the like exemption from costs existed where a verdict was rendered; it being provided by the revised statutes (2 R. S. 707, § 26, 3d ed.)
Whatever technical difficulties may once have existed, under the general rule which required that the plaintiff in an action against several joint defendants must recover, if at all, against the whole; none certainly exist under the code, which authorizes a judgment to be given for or against one or more of several plaintiffs, and for or against one or more of several defendants. (Farmers and Mech. Bank v. Rider, 5 How. Pr. Rep. 401. Fullerton v. Taylor, 6 Id. 259.) I do not suppose, by any means, that this provision extends any further than to enable the court to give judgment according to the contract as it shall be made to appear on the trial, and against such as made the contract and have no personal defense.
It is quite certain then that these plaintiffs might have sued Pattison with the other defendants, and have taken judgment against these defendants alone, if Pattison had set up and availed himself of infancy on the trial.
But, after all, this case rests upon established legal principles. The contract was not void. It was voidable only, and by Pattison alone. If Pattison had been sued with the other defendants, he might, if he chose, have availed himself of his non-age to avoid the contract. But the plaintiff has no right to anticipate that he would do so. It is the right of Pattison to hold the plaintiffs to the contract, and it is as much his right to be made defendant as it would be to prosecute as plaintiff. The plaintiffs contracted with him subject to these legal rights. If the infant elects to contract and carry on business jointly, and to be sued and to be liable jointly, can a person who has contracted with him say he shall not do so ? If so, infancy is not a privilege personal to the infant, but to the person contracting with him. Neither the plaintiffs nor defendants can subject Pattison to the consequences of an act he may repudiate and condemn. The infant has a right to be heard, and is entitled to the privilege
Parker, Wright and Harris, Justices.]
The precise question involved in this cause has been decided by the court of appeals of Virginia, in Wamsley v. Lindenberger & Co. (2 Rand. 478.) A promissory note was executed by one of two partners in the name of the firm. One of the partners was an infant at the time of the execution of the note. An action was brought against the adult partner only. All the facts were set out in the declaration, and the defendant demurred. The court held that the action was badly brought, the act of the infant not being void, but voidable only at his election. In that case the English and American authorities were reviewed with care, and the court said the decision depended on the question whether the contract was void or voidable.
I think the judgment appealed from should be reversed, and judgment given for the defendants on the demurrer.
Judgment reversed.