Hillyer v. Bennett

The Vice-Chancellor :

The object of the bill in this case is, not to settle the partnership accounts between the complainant and E. G. Bennett, nor to call J. C. Bennett to an account for the surplus of the assigned property under the assignment which the partners executed to J. C. Bennett to secure him against the five hundred dollar note, but, to set aside the assignment and to have the goods restored to the complainant, on the ground of his nonage, as well during the co-partnership as at the time of the assignment; and on the further ground that the note of five hundred dollars, which the assignment was made to secure, was not a debt of the firm or partnership, but was given to raise money for E. G. Bennett for and towards his portion of capital; and which money was accordingly brought into the concern by him as capital and, hence, became his individual debt as between him and his father J. C. Bennett.

With respect to this latter ground, it is clearly not sustained by the facts of the case. E. G. Bennett was not to bring in five hundred dollars cash capital. The articles of co-partnership exclude the idea; and the allegation of the bill that it was a part of the agreement and was omitted in the articles, is expressly denied and is not supported by proof. The parties stood upon an equal footing in respect to capital, when E. G. *225 Bennett became jointly responsible with complainant in buying out Kinsley’s interest in the former partnership and assuming one half of the debts of the firm of Kinsley & Hillyer. He, thereby, became owner of one half of the goods and outstanding debts of that-firm, which constituted the stock in trade of the new partnership. The making of the note, therefore, to raise five hundred dollars for the use of the firm of Bennett & Hillyer, may well be considered as a debt contracted by the firm and not as a further advance of capital which E. G. Bennett was bound to make ; and it affords a just, equitable and valuable consideration for the assignment which the parties afterwards made to J. C. Bennett, the endorser of the note. Hence, on this ground, the complainant is not entitled to the relief which his bill seeks.

Then, with respect to his nonage : the complainant’s counsel is mistaken in saying that the acts and deeds of an infant are void in law. They are not void, but voidable only, at his election : Roof v. Stafford, 7 Cowen, 179 ; S. C. in Error, 9 Cowen, 626 ; Eagle Fire Company v. Lent, 1 Edwards’ V. C. Rep. 361 ; Merchants Fire Insurance Company v. Grant, 2 Ib. 544. If a party is sued at law or in equity, he may plead or set up his infancy in bar, and thus avoid his contract, for he then makes his election to do so. So, it seems, in regard to personal property which he has agreed to sell and deliver, he may, under certain circumstances, disaffirm the contract and bring trover to recover it back : Stafford v. Root, supra.

But if, after he comes of age, he seeks to disaffirm and avoid his contract in a court of equity and files his bill there for the purpose of obtaining its aid, in restoring to himself the possession of the property he has parted with, a court of equity must deal with him as it would with any other adult party and re quire him to do equity before he shall have equity done unto him. He must restore what he received when he parted with the property which he seeks to get back ; especially, if it appears that the other dealt with him in ignorance of the fact of his nonage. This equitable and just principle is recognized by Woodworth J.: 7 Cowen, 183, and is warranted by several cases there cited.

The complainant is not entitled to have the assignment set aside and cancelled, without submitting to pay and offering to *226 pay the note or, at least, one half of it; and, as he has not offered to do this, the court will not interfere with the assignment and the legal rights of the defendant J. C. Bennett under it.

As this bill is not filed for the purpose of an account of this surplus and would seem, indeed, to be prematurely filed for that purpose, I am of opinion it must be dismissed, with costs; but without prejudice to the rights of the complainant, at any time hereafter, to call the defendant to an account in relation to the surplus proceeds of the goods assigned, after paying the note.