Bush v. Linthicum , 59 Md. 344 ( 1883 )

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] The sole question to be decided by this Court is as to thedisability of the defendant to be sued, by reason of his minority. It will be noticed that there are no parties to this suit but the two partners, no interest involved but theirs, and no evidence that there are any creditors of the firm, or any other persons whose interest can be affected; and the question to be determined, is solely as between the complainant and the defendant.

On the case so presented, the Court below erred in not refusing all relief in the premises, and in not dismissing the bill as soon as theminority of the defendant was made to appear to the satisfaction of the Court.

It is a general principle, universally recognized, as well at law as in equity, that no person under the age of twenty-one years, is competent to make a binding contract, except for necessaries. Story onContracts, sec. 104; 1 Chitty on Contracts, 141; Bingham onInfancy, 33; 2 Kent, 234, c.; Brawner vs. Franklin, 4 Gill, 463, 470.

An infant is not bound even by his deed. 2 Kent, 234; Bingham onInfancy, 33; Borsch vs. Parsons, 3 Burrows, 1794; Levering vs. Heighe,Adm'r, 2 Md. Ch. Dec., 81; Cronise vs. Clark, 4 Md. Ch. Dec., 403;Moale, et al. vs. Buchanan, 11 G. J., 314; Ridgely vs. Crandal andWife, 4 Md., 435; Whitney vs. Dutch, 14 Md., 457; Monumental Buil. Asso.vs. Harman, 33 Md., 128.

A minor may become a partner, but as long as he is an infant, be incurs no liability, and cannot be made responsible for the debts of the firm. Lindley on Part., 80.

And this, upon the obvious ground of his inability to bind himself by a contract, and does not require to be supported by any special authority. Lindley on Part., 81. This would be the case, even if he falsely and fraudulently represented himself to be of age. Lindley onPart., 81, note 1. And he may avoid the contract at his election, and disaffirm the partnership, or his liability, when he comes of age, or at any time before, if he chooses. Lindley on Part., 81, note 1;Ewell's Lead. Cases, 96, notes; 97, note 1, and the authorities therecited; Ewell's Lead. Cases, 219, and note 1.

This irresponsibility of a minor for his contracts, is not broader, nor more clearly recognized, than is his immunity from suit, or from any proceedings at law or in equity, to enforce against him the compliance with any contract. The Courts do not recognize any liability on the part of a minor to bind himself, and do not furnish any remedy against him, except in cases of fraud, and then only in actions ex delicto.

The agreement or contract of partnership in this case, which, at the best, was voidable by the infant, became absolutely void by his disaffirmance. Was it ever known that a Court would administer a void contract? Lindley on Part., 82; 1 Chitty on Contracts, 23; 2Kent, 241; Wilford Eq. Plead., 20; Hoel vs. Ward, 2 Strange, 972;Deford vs. State, use of Keyser, 30 Md., 179.

The Courts will not enforce against a minor, even an executory contract, entered into bona fide, though he has received benefit under it. Brawner vs. Franklin, 4 Gill, 463.

This immunity of a minor from being sued, may be taken advantage of at any time, in the progress of the suit, precisely as an objection to thejurisdiction of the Court, or to the capacity of the plaintiff to sue, and by demurrer, plea or answer, or at the hearing, whenever his minority is made apparent. Tartar, et al. vs. Gibbs, et al., 24Md., 324; Story's Eq. Plead., secs. 75, 236, 237; Lube Eq. Plead., 112.

And whenever infancy is so made to appear to the Court, the bill should be dismissed. Brawner vs. Franklin, 4 Gill, 469.

The learned Judge in delivering his opinion, relies on only one authority, viz., Kitchen vs. Lee, 11 Paige Ch. Rep., 107, to justify the Court in retaining a suit against a minor. That is not a case againsta minor, but against one who had attained his majority, and wasthen seeking to consummate a fraud, which he had commenced during minority.

Nor is either one of the cases referred to by the Chancellor in that decision, 2 Paige, 191; 1 Dana, 45; 4 McCord, 241; 15 Mass., 359, cited as authority for proceedings against a minor; for the three first are against adults, and in the case, in 15 Mass., it is conceded, that no suit could be maintained against a minor, and the replevin against him for goods wrongfully held by him was dismissed, and after his death a replevin was commenced against his administrator, for the goods which had come into the hands of such administrator.

The articles of agreement do not limit the duration of the partnership, and we suppose it will not be denied that "where the contract neither expressly, nor by inference, limits the duration, the partnership may be terminated at a moment's notice by either party."Cranshaw vs. Waull, 1 Swanston, 508.

And further, that "a Court of equity will dissolve a partnership, where it appears that the business cannot be carried on according to the true intent and meaning of the articles of copartnership, although one partner objects to the dissolution." Baring vs. Dix, 1 Cox, 213.

The Court was correct in allowing the motion of ne recipiatur to the plea of infancy:

1st. For the reasons assigned for said motion.

2nd. Because if such a plea were allowed as a bar to the relief prayed for, under the peculiar circumstances of this case, the grossest injustice could be done to one innocent party, under the sanction of the law, and "the adult would, in every case, be placed at the mercy of the infant partner."

3rd. Because under the terms of the copartnership, either party had the right to terminate the same at his pleasure, and it would be absurd to say, that because one of said parties happened to be an infant, which the law permits, and said infant refuses to agree to a dissolution and a settlement, or even a compliance with the terms of the agreement, that a Court of equity could not interfere. Kitchen vs. Lee,11 Paige, 107.

4th. If an infant forms a partnership with an adult, he holds himself forth to the world as not being an infant, and thus practices a fraud upon the world. Gibbs vs. Morrill, 3 Taunt., 307; Kemp Buckey vs.Cook, 18 Md., 138; Herman's Case, 33 Md., 128.

The appellee having filed a bill for the dissolution of the partnership between himself and one Richard H. Weir, the case proceeded to answer and replication; and then an order to take testimony upon the motion to dissolve the injunction, and discharge the receiver, who had been appointed at the granting of the injunction. At this stage of the case, the defendant, who had answered under oath, and appeared by a solicitor, interposed, through the appellant his next friend, a plea of infancy, and prayed that the bill might be dismissed. Upon this plea being filed, a motion of ne recipiatur was made and filed by the complainant, to which the appellant demurred; and the demurrer having been overruled, appeal was taken. The sole question, therefore, is, was the Court right in over-ruling the demurrer and rejecting the plea of infancy, to the extent expressed in the order of the tenth of June, 1882, appealed from ?

The facts of the case are so fully set out in the opinion of the Circuit Court, which we adopt, that it is useless to re-state them. The reasoning of the Court, in support of the order passed, is so cogent that we can add nothing to its force, and shall rest our affirmance mainly upon the ground taken in that opinion. By the demurrer to the motion and reasons assigned, the defendant admitted the facts stated in the third reason, that the complainant had no knowledge of the defendant's minority, and had been deceived by his representations that he was of full age. Had the complainant discovered that the defendant had so deceived him, before filing his bill, he could and would have made that allegation as an additional ground for the Court's interference, and it would have justified the relief prayed for. The fact that he did not, upon the interposition of the plea, ask leave to amend that he might so charge, cannot operate to his prejudice. Where an injunction has been granted and a motion to dissolve has been made, it is not usual to ask for, or for the Court to grant leave to amend; and the reasons are so obvious we need not give them. The plea interposed new matter, infancy, by way of defence, but the plea does not aver that the complainant had knowledge of it, and entered into the partnership notwithstanding complainant's motion sets up the want of knowledge and the defendant's deception as reasons against receiving the plea; and the demurrer, as we have already said, concedes the facts so set up. Upon the demurrer the matter was considered, as if the complainant instead of filing his motion, that the plea be not received, had replied alleging the facts stated in the third reason assigned for the motion, and the defendant had then demurred. Whether complainant had knowledge of defendant's infancy and was deceived about it, is not an open question, as the demurrer admits the facts charged. It would be strange indeed, if a Court of equity could regard infancy pleaded under such circumstance, as good ground for abating the suit, when the same facts, if alleged in the bill, would have given claim to relief. The inconsistency is so apparent, that we cannot doubt the correctness of the Court's ruling that the plea was not a bar to the whole proceeding.

The Court was right also in refusing to make the defendant personally answerable even for costs, for although he may be a partner, he cannot be held for contracts of the firm individually unless he affirms, or does that which amounts to affirmance after reaching majority. InDunton vs. Brown, 31 Michigan, 182, it was decided that an infant who had made a partnership could not disaffirm it until he arrived at age, and could not by next friend, a guardian, recover back what had been put into the concern. The same doctrine was again affirmed by Judge COOLEY in Armitage vs. Widoe, 36 Michigan, 130. Having formed this partnership, he cannot so far repudiate it during minority, as to escape such consequences of partnership as do not involve personal liability for claims against the firm, or costs incident to the legal settlement of its affairs. Such partnership must be dissolvable as any other; and the partnership assets must be assignable to partnership creditors. What his rights may be, as against his. adult co-partners, when he reaches majority, we do not decide.

The technical objection to the plea, raised at the hearing in this Court, that it was put in by next friend, seems, by the authorities, to be well taken. They all agree that while an infant may sue by his next friend, he cannot answer except by guardian appointed by the Court, but such guardian will always be appointed upon petition of the infant in his own name. Daniel's Ch. Pr., 130, 160, 161; Story's Equity Pl.,sec. 70; Mitford's Equity Pl., 124. There seems to us also some irregularity in filing such plea after an answer responsive to the whole bill, and setting up other matter in defence, to which replication had been filed, without first withdrawing the answer, under leave. A plea like a demurrer, admits the facts not necessarily embraced in, and denied by the plea, and rests entirely on the point made by the plea which is intended to prevent further proceeding. Mitford's Pl., 15;Deford vs. The State, 30 Md., 198; Kemp Buckey vs. Cook Ridgely,18 Md., 133. The action of the Court below does not appear to have been influenced at all by these technical considerations, as it, perhaps, might have been, and we only advert to them here by way of indicating our view of the proper practice. Approving the Court's order it will be affirmed, and the cause remanded.

Order affirmed, andcause remanded.