118 Mass. 495 | Mass. | 1875
This is an action to recover the price of goods sold to a firm which consisted of the defendants, one of whom, Chauncey F. Clapp, was an infant, and the other a married woman, at the time of the sale. It appeared in evidence that the plaintiffs brought this suit before the infant became of age, and attached upon the writ, among other goods, a portion of the goods sold; that the attached goods were sold at auction by consent of all the parties, and were bid off by Chauncey Clapp, the grandfather and guardian of the infant defendant, and that sometime after the infant defendant became of age he purchased of said Chauncey Clapp the goods, and has since used and sold them for his sole benefit.
The court correctly ruled that the jury could not find, from these facts, that the defendant Clapp after he became of age rati fled and affirmed his contract with the plaintiffs.
His only right to retain the goods is by virtue of the contract, and he can conscientiously do it only upon the assumption that the contract is valid. Boyden v. Boyden, 9 Met. 519. Smith v. Kelley, 13 Met. 309.
But the case at bar is different. The defendant Clapp after he became of age did not claim or hold the goods under or by virtue of the contract with the plaintiffs. He held them by virtue of a new and independent contract of purchase. There is no inconsistency in his claim to hold the goods under this new purchase, and his claim that his contract with the plaintiffs was invalid, and no inference can be drawn, from his thus holding the goods, of an intention to ratify and affirm the plaintiffs’ contract.
The only other question raised by the bill of exceptions is as to the correctness of the ruling that the St. of 1863, c. 165, prevents a recovery against the female defendant in this action. This statute provides that “ the provisions of section three of chapter one hundred and eight of the General Statutes authorizing a married woman to carry on any trade or business on her sole and separate account, shall be so construed as not to allow her to enter into copartnership in business with any person.”
The St. of 1863, c. 165, was expressly repealed by the St. of 1874, c. 184, $ 5, which was enacted on April 24, 1874.