Avery v. Fisher

Headnote

Partnership — assignment of firm assets by one partner to pay a firm debt — the fact that the paA'tner was an infant cannot be set up by a third person.

Appeal' from a judgment in favor of the plaintiff, entered upon the report of a referee.

The action was brought by the plaintiff upon a claim held by the firm of Hunt & Avery against the defendant, which had been assigned to him by Avery for an indebtedness due him from the firm. One of the defenses was that Avery was- an infant and incapable of assigning the claim.

"With reference to this the court at General Term said: “ The indebtedness of the firm of Hunt & Avery to the plaintiff was satisfactorily established. One partner has by virtue of the partnership relation, authority to transfer partnership property in payment of a partnership debt. An assignment made for that purpose by one partner in the partnership name, is binding upon the partnership. (Everit v. Strong, 7 Hill, 385 ; Mdbbett v. White, 12 N. Y., M2; Graser v. SteMwagen, 25 id., 315.) The fact that the copartner who made the assignment, in this case was at the time an infant does not invalidate the assignment, for the reason that infancy is a personal privilege, an.d no one but the infant can take advantage thereof (Slocum v. Hooker, 13 Barb., 537 ); and for the further reason, that infancy does not incapacitate a person from becoming the agent of another. Where a partnership is created between an adult and an infant, the relation of mutual agency, growing out of the partnership relation, exists to the same extent ■as if both the parties were adults. The contract of partnership being legal and binding per se upon the adult and equally so upon the infant until disaffirmed by him, it follows that the partnership must be bound by the act of the infant partner at any time before an actual disaffirmance by him of the partnership agreement.” {Sage v. Sherman, 2 Oomst., 426; Coll. Part., § 12; Story on Agency, § 7.)