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by his agent in his behalf, would not bind the other party thereto to such principal, unless such other party knew, or had some reason to know, that he was contracting with the agent of a minor;" that, “as to a waiver by the defendant of his right to object to the minority of the plaintiff, no waiver took place, if the defendant did not know, or have reasonable cause to know, of the existence of such minority, or that he was dealing with the agent of a minor, and the statement by such agent that he was acting for another, without stating who, could not of itself be sufficient notice of plaintiff's minority;" that “a notice to the defendant from the plaintiff's agent that he [the agent] was acting for another would not create a contract between the defendant and such other party, if such other party was a minor, and such minority was not disclosed.” The court refused to give the rulings as prayed for, except the second of the above, which he gave, but qualified it by stating to the jury that the right which every person has to elect who he will enter into a contract with would not prevent an undisclosed principal from availing himself of a contract made by his agent, excepting in a case in which personal considerations entered into the purposes or object of the other party, as in the case of the employment of a clerk or book-keeper, etc., and that the defendant might, if he cared to know the fact, have inquired who the principal was, and whether he was a minor or of full age. After the court had charged the jury, defendant asked to read the following instruction which he desired the court to give: “If the jury believe that the defendant would not have contracted with the plaintiff had he known of his minority, and the plaintiff's agent making the contract with the defendant, and knowing of such minority, designedly concealed it,-led the defendant to suppose that he (the agent] was the principal, -the contract would not be one between the defendant and the minor." The court refused to hear said instruction read, the jury found for the plaintiff, and the defendant alleged exceptions.

Hosea Kingman, for plaintiff.

The whole of the auditor's report was properly permitted by the court to be read to the jury. Fair v. Manhattan Ins. Co., 112 Mass. 329.

The questions, “Had you known that Freddie L. Stiff was the party interested in the goods, should you have entered into a contract with him?" and "Should you have made a contract with a minor for the storage of these goods?" and the offer to prove by the answer to said questions that the defendant would not have made the contract declared upon, with a minor, were properly excluded, as it was entirely immaterial what the defendant would have done; the real issue being what he did in fact do.

The court properly refused to give the third ruling asked for. No rule of law is better established than that an undisclosed principal may bring an action on the contract made by his agent, (Ilsley v. Merriam, 7 Cush. 243; Cutter v. Demmon, 111 Mass. 474; Barry v. Page, 10 Gray, 398,) and this rule holds good, even though at the time of making the contract the agent gives a receipt in his own name for part of the purchase money, (Huntington v. Knox, 7 Cush. 371.)

The fourth ruling asked for was given with a proper qualification. As appears from the bill of exceptions, there was evidence tending to show that the defendant knew he was contracting with an agent of some person, and who that person was he did not care to inquire.

The fifth ruling asked for, the court properly refused to give.

The sixth and ninth ruling asked for, the court properly refused to give, for the reason that the defendant, having the means and opportunity of knowing who the principal was, was willing to make this contract without making any inquiry to ascertain that fact.

The instruction asked for, after the court had charged the jury, the court properly refused to give. McDonough v. Miller, 114 Mass. 94.

The jury, by their verdict, have found that the contract declared on was made with the plaintiff, through his agent, and, upon the evidence stated, must have found that the defendant knew he was making a contract with an agent acting for a principal whose name was not disclosed.

J. M. & T.C. Day, for defendant.

The principal question in this case is whether a contract entered into by the agent of an undisclosed minor principal (said contract not being for necessaries) can be enforced in the name of and at the suit of the minor, after a repudiation thereof by the defendant. Until modified by considerations of public policy, the rule of law was that only the actual parties to a contract could sue upon it. Story, Ag. $ 161; Chit. Cont. 225. Agreements by minors, which are not contracts if the minor chooses so to declare, cannot be considered as having any connection with a public policy relating to actual business interests and obligations. The defendant had the right to elect with what party he would enter into a contract, without regard to any qualifications whatever. Orcutt v. Nelson, 1 Gray, 536; Winchester v. Howard, 97 Mass. 304; Boston Ice Co. v. Potter, 123 Mass. 30. It seems clear that a person should have the right to decide whether or not he will enter into a contract with a person not sui juris, and that an infant is not sui juris. Cassier's Case, 139 Mass. 458; S. C. 1 N. E. Rep. 920. The statement by the court “that the defendant might, if he cared to know the fact, have inquired who the principal was, and whether he was a minor or of full age,” might have led the jury to suppose it was his duty to do so. But it is submitted such was not his duty. Chit. Cont. *225. The defendant was not bound to make inquiries as to the minority of the plaintiff, unless the facts brought to his attention ought to have excited his suspicion and put him upon inquiry as to this question. Ridgeway Stove Co. v. Way, 141 Mass. 560, 561; S. C. 6 N. E. Rep. 714. The defendant had the right to show the fact that he would not have made the contract with the plaintiff, and he was a competent witness in his own behalf. Winchester v. Howard, 97 Mass. 304. As soon as the defendant had knowledge that the plaintiff was interested in the contract, he refused to recognize him, and this he had a right to do, provided he had accepted and retained no benefits under the contract, although the alleged breach of the contract had already taken place. · Winchester v. Howard, Boston Ice Co. v. Potter, Orcutt v. Nelson, all before cited. There was sufficient evidence to warrant the jury to find in defendant's favor upon these points, to-wit: Plaintiff's age, his right to repudiate contract, the fact defendant could not enforce it, and the fact that the agent designedly concealed the relation of the minor principal to the contract.

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HOLMES, J. This is an action of contract alleging a bailment by the plaintiff to the defendant, and a refusal to deliver. There was evidence tending to show that the defendant made such a contract with the plaintiff's father, and that the father was acting as the plaintiff's agent, and stated that he was acting for another, but did not disclose the name of the plaintiff, who was his son, and only 15 years old. There was also evidence of a refusal to deliver.

The defendant's counsel states the main question raised by the bill of exceptions to be whether a contract not for necessaries, made by an agent on behalf of an undisclosed principal, who is a minor, can be enforced by the minor in his own name after the defendant has repudiated it. The question, in fact, is not so broad. It is not even whether the defendant could or could not have declined to remain the bailee of the plaintiff after discovering that the plaintiff was a minor, but whether, on the ground of that discovery, he could justify a refusal to deliver the goods to the plaintiff, from whom he had accepted a bailment of them. We may remark, in passing, that the defendant does not seem to have put his refusal to deliver upon this ground, but upon a denial that he had made any contract whatever with the alleged agent. The defendant "stated that he knew neither of them in the business.”

It is impossible to say that no contract is made when the undisclosed principal is a minor. A minor can make a contract, although his contract is voidable.

Whenever, there is a principal capable of contracting, and the other formal elements of a contract are present, a contract is made. It is then that the minority of the principal, and his consequent right to avoid, if known, would give a motive for not making a contract with him. But the greatest effect which could be attributed to that consideration would be to hold the contract voidable by the other party on that ground.' When a contract is void, it is always for want of some formal constituent. When a party has been allowed or induced to make a contract, perfect in its formal constituents, upon motives different from those which the facts would have offered, if known, the contract is never more than voidable.

Whether this contract would have been voidable we need not consider. It seems to have been terminable at will on its face. .But even if voidable it could be avoided only by surrendering the goods to the bailor. This would be very plain if the goods had been actually delivered by the bailor to the bailee. The essence of rescission is that it restores things to the condition they were in before the contract was made. The same thing is true, although a little more disguised, when, as here, the goods were already in the hands of the defendant as bailee for another. By becoming bailee for the plaintiff, he admitted the plaintiff's right of possession, as against himself, subject to any lien he might have.. It cannot be said that this is merely an effect of the contract, and disappears with the contract when rescinded. It is an admission preliminary to the contract, on the faith of which the plaintiff leaves the goods in the defendant's hands. The defendant must stand to his admission if he wishes to repudiate his contract. He has not done so, and therefore, if for no other reason, the contract has not been successfully rescinded. It follows that the rulings requested, so far as not plainly wrong, were not material upon the admitted facts.

Boston Ice Co. v. Potter, 123 Mass. 28, cited by the defendant, throws no light on the doctrine of undisclosed principal. The plaintiff did not seek to recover as principal upon a contract made with its predecessor in business, but upon a new one, to be implied, with itself, which the court held could not be implied.

It follows from what we have said that the defendant's evidence, that he would not have made the contract declared upon with a minor, was rightly rejected. It went merely to strengthen the grounds for holding the contract voidable. Frost v. Brigham, 139 Mass. 43, 47.

The instruction requested after the charge is open to the same objection as the others; for there was no evidence of any fraud as against the defendant. It is unnecessary to consider whether, under other circumstances, the court might have been bound to consider it. See McMahon v. O'Connor, 137 Mass. 216.

The court properly allowed the whole auditor's report to be read to the jury. See Fair v. Manhattan Ins. Co., 112 Mass. 320, 329.

Exceptions overruled.

(143 Mass. 257)

MORRILL V. SPURR.

(Supreme Judicial Court of Massachusetts. Suffolk. January 6, 1887.) PARTNERSHIP-ADVANCES UNDER AGREEMENT TO BECOME PARTNER.

Where A. advances money to B., to be used in his business, taking his notes therefor, under an agreement that A. might become an equal partner with B., considering the sums advanced as contributions to the capital of the firm, if on further exanination A. should so desire, and B. carries on the business as his own, drawing more than half the profits therefrom, and crediting A. on the books with interest on the notes, and A., seeing the interest credited, claims that he is a parüber and should receive half the profits, but no interest, and B. still continues to credit A. with interest, and to treat the business as entirely his own, in a suit on the notes the court is justified in ruling that no partnership was ever formed. Contract on certain promissory notes given by the defendants to the plaintiff. The defendant claimed that the sums of money for which said notes were given were contributions to the capital stock of a partnership which he alleged to exist between the plaintiff and defendant, and that, inasmuch as said partnership had never been liquidated, the plaintiff could not recover in this form of action. Trial in the superior court, before BARKER, J., who found for the plaintiff, and reported the case to the supreme judicial court for its determination. The material facts appear in the opinion.

Ball, Storey & Tower, for defendant.

By the agreement, nothing remained to be done towards forming the partnership except the election of the plaintiff to become a partner. As soon as the plaintiff made this election, and expressed it, the partnership, by force of the original agreement, dating from January 1, 1879, and the rights of the plaintiff as a partner, became fixed, and the court finds that this determination by the plaintiff was made. The court found, in substance, that the defendant did not treat plaintiff as a partner. This may be conceded. If the agreement was made, an intention on the part of either party not to perform it does not vary the rights or obligations of either. An intention to break a contract has no greater effect than an absolute breach. Conceding, therefore, the naked fact that he has not performed his obligations as partner, we claim that for non-performance the plaintiff must seek his remedy as partner by a bill in equity to wind up the partnership, in which the equities of both parties can be fairly considered, but that he cannot revive the contract on the notes which, by a binding agreement, has once been canceled, and assert rights thereunder which he has once abandoned. Having elected to become a partner, he is bound by the election, and must exercise the rights which that election gave him.

N. Morse and Geo. Morrill, for plaintiff.

It is submitted as well-settled law that whether a copartnership does or does not exist in any particular case, as between the parties themselves, depends upon the real intention and contract of the parties, as shown by the whole facts of the case. Poll. Partn. art. 2; Cox v. Hickman, 8 H. L. Cas. 268–304; Pars. Partn. (3d Ed.) 58; Story, Partn. (7th Ed.) c. 4, § 30, note 3; Lindl. Partn. (4th Ed.) 18; Colly. Partn. (6th Ed.) 8 2, note 9, and cases cited. The contract to enter into partnership must be executed. Pars. Partn. 7. A mere declaration by the plaintiff, in 1881, of his intention to become a partner, is not sufficient to make him such, even though defendant replied that it was a relief to him to know that he had so decided. It is obvious that the preliminary agreement contemplated a future settlement and adjustment of the terms on which they were to become partners, if at all, and no copartnership could exist by force of the original vague and incomplete understanding, unless something more was done or agreed. Defendant refused to go further, and plaintiff had the right to abandon the agreement. Wald's Poll. Cont. (New Ed.) 5, 42, and cases; Lord BLACKBURN, Rossiter v. Miller, 3 App. Cas. 1151; Lewis v. Brass, 3 Q. B. Div. 667; Dickinson v. Dodds, 2 Ch. Div. 463; Wald's Poll. Cont. (New Ed.) 28. The judge was not required to instruct the jury as to what might be the effect of one fact taken separately, when it was accompanied and connected with other facts tending to establish the main issue. Green v. Boston & L. R. R., 128 Mass. 221; Murphy v. Boston & A. R. R., 133 Mass. 121.

MORTON, C. J. There being no written articles of copartnership between the plaintiff and defendant, the question whether the parties, by an oral agreement, forined a copartnership, was purely a question of fact. Upon this question we cannot revise the finding of the justice of the superior court who tried the case without a jury, except so far as to inquire whether there is any evidence which justifies his finding. The facts and evidence reported to us tend very strongly to show that no partnership was ever formed. The plaintiff advanced money to the defendant, taking his note therefor, upon the agreement “that if, after further examination, the plaintiff should conclude to become a partner in the business, he should have the right to do so, and should be adinitted as an equal partner with the defendant,” and that in such case the sums for which the notes were given should be considered as contributions to the capital of the firm. No partnership was formed by this agreement. It was in its nature an executory agreement that a partnership should be formed, and that the plaintiff should be admitted as a partner in the future when he signified that he desired to become a partner. It appeared in evidence that, when plaintiff signified to the defendant his choice to become a partner, the defendant refused to admit him or recognize him as a partner, and has always since so refused. The court was clearly justified in finding that no partnership was ever formed, and therefore that the plaintiff was entitled to recover on his notes.

Judgment on the finding. (109 Ind. 506)

SUMMIT 0. YOUNT and others. 1

(Supreme Court of Indiana. December 21, 1886.) 1. WILI-WORDS OF LIMITATION OR CONDITION-RESTRAINT OF MARRIAGE.

A devise of land by a husband to his wife, so long as she remains his widow, ia not upon a condition in restraint of marriage; the words used being words of lim

itation, marking the duration of the estate, and not words of condition. 2. SAME-INTENTION OF TESTATOR.

The lawful intention of a testator, as manifested in his will, should be given effect by the courts. Appeal from circuit court, Morgan county. Adams & Newby, for appellant. Grubbs & Parks, for appellees.

HOWK, J. This was a suit by the appellees against the appellant, in a complaint of two paragraphs. The first paragraph was a complaint, in the statutory form, for the recovery of certain real estate, particularly described, in Morgan county. In the second paragraph of their complaint appellees sought to quiet their title to the same real estate against the adverse claims of the appellant herein. The cause was put at issue and tried by the court, and a finding was made for appellees, the plaintiffs below; and, over appellant's motion for a new trial, the court rendered a judgment and decree in favor of appellees upon and in accordance with its finding herein.

Appellant has here assigned a number of errors; but it has seemed to us, from our examination of the record herein, that the merits of the cause are presented for our decision as fairly for appellant as for appellees, by the alleged error of the trial court in overruling appellant's motion for a new trial, We shall, therefore, consider and decide the questions as to the titles of the parties, respectively, to the real estate in controversy, upon the case made by the evidence appearing in the record.

Both the appellees and appellant claim to be the owners in fee-simple of the real estate described in the complaint, under one John Radcliff, who died testate on the twenty-fifth day of January, 1879, seized in fee-simple of such real estate, leaving no child, or the descendants of children, and no father or mother; but leaving brothers and sisters, and leaving also appellant, Sarah Summit, then Sarah Radcliff, as his widow, surviving him. At the time of his death John Radcliff was also the owner in fee-simple, in his own right, of 150 acres of other land, and upon the final settlement of his estate, under his will, his executor paid over to appellant herein, as his 1 Rehearing denied,

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