Kitchen v. Lee , 11 Paige Ch. 107 ( 1844 )

The Chancellor.

The plea in this case is founded upon the supposition that the complainant is not entitled to any relief whatever, if the defendant Lee, as an infant, was not bound by his contract to pay the debts of the copartnership. It does not follow, however, that the complainant is without remedy in this court, even if Lee is not legally bound by his agreement upon the dissolution of the copartnership. The contract was one which he might affirm or repudiate at his election; But he ; cannot be permitted to retain all the copartnership effects, and at thfe same time refuse to perform the condition upon which the complainant’s interest in the effects of the firm was to become his property. If the defendant Lee, therefore; elects to rescind the agreement, made upon the retiring of the complainant from the business, the latter has a right to insist that his interest in the copartnership effects shall be applied to the payment of the debts in the same manner as if thé dissolution had not taken place; unless the goods have gone into the hands of a bbná fide purchaser who had actually paid for them before he had áhy notice whatever of the complainant’s rights.

The rule of law on the subject is, that an infant cannot be permitted to retain the property purchased by him and at the same time repudiate the contract upon which he received it. (Lynde v. Budd, 2 Paige's Rep. 191. Deason v. Boyd, 1 Dana's Rep. 45. Cheshire v. Barrett, 4 McCord's Law Rep. 241.) If the goods in this case had belonged to the complainant exclusively at the time of the agreement, and the infant had repudiated his agreement when he became of age, trover or re-plevin would have been the proper remedy for the goods if they remained unchanged. (Badger v. Phinney, 15 Mass. Rep. 359.) But this being copartnership property, previous to the agreement, the only remedy of the complainant was in this court. And this plea of infancy is not a full defence to the case made by the bill. It was properly overruled, therefore, with costs. But as it is possible that the defendant Lee has not, since he became of age, done any act to affirm the contract made with the complainant upon the dissolution of the copartnership, he miist be permitted in his answer to set up the defence of infancy so far as to protect him from any personal liability arising out of the agreement mentioned in the bill, except such liability as may result from his repudiation of the agreement. This, if it had been asked for, would have been granted of course by the vice chancellor. Or the plea would have been permitted to stand for an answer, if the defendant had requested it; although that would not have been beneficial to him, as it would have deprived him of the power of setting up any othe.r matter of defence.

The order appealed from must be affirmed with costs, but without prejudice to the right of the defendant to set up the de-fence of infancy in his answer, as above suggested, so far as it can avail him