Miles v. Wann
| Decision Date | 27 July 1880 |
| Citation | 6 N.W. 417,27 Minn. 56 |
| Parties | William K. Miles and others v. John Wann, impleaded, etc |
| Court | Minnesota Supreme Court |
Action against the defendants W. F. Von Deyn, Thomas L. Wann and John Wann, as partners in the firm of Von Deyn & Co., for goods sold and delivered to the firm. John Wann alone defended, denying that he was a member of the firm. At the trial in the district court for Ramsey county, before Brill J., the plaintiffs dismissed the action as against Thomas L Wann; and on motion of John Wann, the court dismissed the action as to him. A new trial was afterwards granted, and the defendant John Wann appealed.
Order affirmed.
Bigelow Flandrau & Clark, for appellant.
An infant may be a partner, (Collyer on Partnership §§ 13, 528; Barklie v. Scott, 1 Hudson & Brooke, 83,) and may enter into any mercantile contract; and the party contracting with him is bound to the same extent as if contracting with an adult. The contract is voidable only, and solely at the election of the infant. Cogley v. Cushman, 16 Minn. 397; Dixon v. Merritt, 21 Minn. 196; Willard v. Stone, 7 Cow. 22; Fonda v. Van Horne 15 Wend. 631; Nightingale v. Withington, 15 Mass. 272.
Infancy is a personal privilege, and if the infant does not plead it, and a guardian ad litem is appointed, judgment goes exactly as if he was an adult. Tyler on Infancy, 52, 172. No one can plead it for him, or in any way act on the assumption that he will plead it. A defendant cannot take advantage of the infancy of a codefendant, nor can a plaintiff anticipate a plea of infancy, and leave out an infant defendant who would otherwise be a necessary party defendant, and if he does, he will be nonsuited. Van Bramer v. Cooper, 2 John. 279; Hartness v. Thompson, 5 John. 160; Slocum v. Hooker, 13 Barb. 536. T. L. Wann was, beyond doubt, a partner in the firm of Von Deyn & Co. Both John Wann and Von Deyn would have been estopped to deny that he was a partner. As such, he was a necessary party defendant, for the plaintiff sued on the joint contract of Von Deyn & Co., and in such a suit all the joint contractors must be made defendants. T. L. Wann had a right to hold the plaintiffs to their contract for the sale of these goods, and it is as much his right to be made a defendant as it would be to prosecute as plaintiff. Neither plaintiffs nor defendants can repudiate him as a contracting party, and therefore a necessary party to the suit. The principle is the same as when one of joint contractors has been discharged in bankruptcy. His discharge is a personal privilege, of which he alone can take advantage. He must be joined as a defendant, and no action can be maintained against the other joint contractors alone, for he may not choose to avail himself of this personal defence. Bovill v. Wood, 2 Maule & Selw. 23; Mason v. Denison, 15 Wend. 64; Wamsley v. Lindenberger, 2 Rand. (Va.) 478. And it is the right of John Wann (if a partner) and of Von Deyn, to have their copartners sued with them. Plaintiffs have no right to deprive them of contribution from their copartner.
Whether John Wann was a partner or not, the action could not be maintained against any of the joint contractors after its dismissal as to one of them, and, on such dismissal, the court was right in dismissing the action as to the others. The complaint still alleges that T. L. Wann is a partner, the proof still supports the charge; and as the debt is against defendants jointly, the recovery must be against all or none. Irvine v. Myers, 4 Minn. 164 (229;) Fetz v. Clark, 7 Minn. 159 (217;) Johnson v. Lough, 22 Minn. 203.
But John Wann never was a partner. It is absurd to say that a father cannot set up his infant son in a partnership business, without becoming a partner; and the only case exactly on the point holds precisely the contrary. See Barklie v. Scott, 1 Hudson & Brooke, 83, (cited in Parsons on Partnership, 147,) where a father had advanced a large sum of money for his son, and made him a partner in a firm, and reserved much more extensive powers over the affairs of the firm than John Wann did in this case, but was held not a partner.
I. V. D. Heard, for respondents.
The testimony in this case fairly tended to show the following facts: John Wann, 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. John Wann 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 John Wann, 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...
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