Van Bramer v. Cooper

2 Johns. 279

Opinion

Tompkins, J.

deliveredthe opinion of the court.

The infancy of the defendant, Thomas Van Bramer, was a personal privilege of which he alone could avail himself. The fact of infancy not being pleaded, or taken advantage of by him, the co-debtor, cannot shield himself, on that ground, from the performance of his contract.

The proof of a partnership between the intestate and Samuel Cooper, was wholly irrelevant, because the existence of such a partnership would not have precluded a recovery upon the contract produced, and proved at the trial; inasmuch, as such contract was a special, separate, and independent one, the performance of which may be enforced, notwithstanding the partnership. The rejection of this proof was proper on another ground, namely, that the only, effect of it would have been to vary and control the operation of a written contract, in no respect ambiguous. These observations apply as well to the offer to prove the existence of a partnership between the intestate and Cooper, as to the evidence tendered of the dissolution of such partnership. The plaintiffs are, therefore, entitled to retain the verdict.

Footnotes

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(a.)

Judgment for the plaintiffs.

) Vide Hartrep et al. v. Thompson et al. 5 John. Rep. 160. Infancy ¡s a personal privilege, and unless claimed by the party, cannot be urged , another, unless he is privy in estate. Beeler v. Bullit, 3 Marsh. 280. Vide Oliver v. Homelet, 13 May. 237.