#### John Mehlhop, Son & Company, Appellant, v. Rae & Harker.

Minor: disaeitomanoe op contract. A minor who isa member of a partnership may disaffirm a contract made by his firm without dis-affirming the contract of partnership. Robinson, J., taking no part.

*Appeal from Buena Vista District Cou/rt.*— Hon. Lot Thomas, Judge,

Saturday, January 27, 1894.

The plaintiffs are wholesale dealers in merchandise, and the defendants are a partnership composed of Thomas W. Rae and J ames Harker. They are retail dealers, and this action was brought against the defendant partnership, and the individual members thereof, for goods sold by the plaintiffs to the defendants. No defense to the claim of plaintiffs was made by the defendant partnership, nor by the defendant Thomas W. Rae. James Harker defended upon the ground *31that he was a minor at the time the goods were purchased, and that he disaffirmed the purchase of the goods from the plaintiffs. There was a trial by jury, and a verdict and judgment for the defendant Harker. Plaintiffs *appeal.*

Affirmed.

*Henderson, Hurd, Daniels & Kiesel*for appellants.

*G. A. Irwin*and *Wm. Milchrist*for appellee.

Eotheook, J.

I. The second count of the defendant’s answer is in these words: “Defendant, for further answer, states that he has never been married, and did not attain the age of twenty-one years until the ninth day of October, 1891; that he has not now, and did not have when he 'attained,his majority, within his control, any of the property described in plaintiffs, petition and amendment, and defendant disaffirms all contracts made with the plaintiffs during his minority.” The plaintiffs’ reply to the answer was as follows: “Plaintiffs admit the allegations of defendant Harker’s answer, but state that, before the goodsfor which this suit is brought were sold to Eae & Harker, said defendant Harker represented that he was then more than twenty-one years of age, and that before said goods were sold, and up to the time this action was begun, said Harker was engaged in business as an adult, and that plaintiffs had good reason to believe him capable of contracting.” It will be observed that it is admitted by the pleadings that Harker was a minor at the time the goods were purchased, and the only question in controversy on the trial in the district court was whether, notwithstanding the minority of the defendant, he was liable personally for the goods, by reason of his having represented that ■ he was more than twenty-one years of age before said goods were sold, and whether he was engaged in business as an adult, and plaintiffs had good reason to believe he was capable of contract*32ing. It is claimed in argument, in behalf of appellants, that the defendant ought not to be allowed to disaffirm the transaction with the plaintiff without also disaffirm-ing the partnership contract, as between himself and Rae. The sufficiency of the defendant’s answer was not attacked, by demurrer or motion or otherwise, in the court, below, and it would seem that some such action was required, to raise the question now presented. However, without determining that question, we think the objection is not well taken. The contract of partnership existing between the individual members thereof, and the contract which the law implies between the members and a creditor of the partnership, are quite distinct.. We think it is very clear that a minor may well disaffirm one of these contracts without dis-affirming the other. It is provided by section 2238 of the Code that “a minor is bound, not only by contracts for necessaries, but also by his other contracts, unless he disaffirms them within a reasonable time after he attains his majority, and restores to the other party all money or property received by him by virtue of the contract, and remaining within his control, at any time after his attaining his majority.” And section 2239 is as follows: “No contract can be thus disaffirmed in cases where, on account of the minor’s own misrepresentations as to his majority, or from his having engaged in business as an adult, the other party, had good reason to believe the minor capable of contracting.” It does not appear that any of the partnership property of the partnership remained in the control of the defendant after he attained his majority, and the supposed equitable considerations urged in argument do not appear of record. Besides, the contention is, in effect, that a minor may not disaffirm one contract without disaffirm-ing another. The statute is explicit. The right to disaffirm the contract of personal liability is absolute, and does not depend upon any other consideration than *33the obligation of that contract. *Leacox v.*Griffith, 76 Iowa, 89, 40 N. W. Rep. 109. We have examied the case of *Miller v. Sims,*2 Hill (S. C.) 479, cited by counsel; and, while it may be a proper construction of the statute of South Carolina, it does not appear to us to be applicable, under our laws.

II. There was a conflict in the evidence upon the questions in issue, as to whether the defendant should be held liable to plaintiffs by reason of misrepresentations as to his majority, and, whether from his having engaged in business as an adult, the plaintiffs had good reason to believe him capable of contracting. As we read the evidence, there was a clear preponderance in favor of the defendant. However that may be, we are clearly of the opinion that the issues of fact in the case were fairly presented to the jury in the instructions of the court. It is true that exceptions were taken to the refusal to give certain instructions requested by plaintiffs, and to instructions given by the court on its own motion. We discover no error in this respect, and we think these objections do not demand special consideration. The judgment of the district court is AEEIRMED.

Robinson, J., took no part in the decision of this case.