Locke v. Lewis.

of common-law forms; second, that the act of the fraudulent partner was simply void, and did not change the relative liabilities of the parties. But in Jones v. Yates, the creditor knew that the bills and money transferred to him came from the funds of the partnership without the knowledge of the other partner. 9 B. & C. 538. And the decision in Purdy v. Powers is wholly inconsistent with the law as settled in this Commonwealth. Homer v. Wood,

11 Cush. 62; Furley v. Lovell, 103 Mass. 387.

In Arnold v. Brown, 24 Pick. 89, one partner made a sale of partnership effects, paying thereby a private debt, as well as partnership debts, though not to the purchaser. The other partner did not assent to or know of the misappropriation. A creditor of the partnership attached the property, and sought to avoid the sale, as in the case before us. The fraud of the partner, in the purpose for which he made the sale, and in the form in which he received the consideration, was exactly the same as if he had taken up his own note directly from the purchaser. But the court held that, as the payment of the separate debt was no part of the contract of the purchaser, and he did not in any way participate in the misappropriation, the sale could not be avoided.

In Williams v. Brimhall, 13 Gray, 462, in which a person, sued for the services of two partners in building a house, was not allowed to show that one of the partners had agreed to build the house in payment of a private debt of his own to the defendant, the facts and the reasons upon which the decision was made were thus summed up by Mr. Justice BIGELOW: "The defendant knew of the copartnership, and of the nature of the business carried on by the firm, and that the work which was to be done for him was within the scope of that business. Prima facie, it was work to be done by the copartnership, and the agreement to set off his private debt for the work to be performed by the firm was prima facie a contract for the misappropriation of that which he knew belonged to the firm to pay the separate debt of one of the copartners. As this was done without the knowledge or assent of the other copartner, it was evidence of a fraud on the firm, and as the defendant offered no evidence to rebut this prima facie case which the plaintiffs had established, he failed to maintain his set-off."

This court has also held the knowledge of the creditor to be an essential element in cases of promissory notes of a partnership, given by one creditor for his private benefit, and which, being

Locke v. Lewis.

between the original parties to the transaction, were not affected by the rule of the law merchant which protects commercial paper in circulation. Eastman v. Cooper, 15 Pick. 276, 290; Hayward v. French, 12 Gray, 453; Warren v. French, 6 Allen, 317.

Participation or knowledge on the part of the purchaser or creditor cannot be material upon the question whether a sale or a contract is absolutely void for want of right or capacity to make it. The constant reference to this element, therefore, in the cases in England, in New York and in this Commonwealth, marks the character of the invalidity to be established.

We would not be understood to affirm that the mere belief of the separate creditor that the property which he receives does not belong to the partnership will of itself be sufficient to entitle him to hold it, if there has been nothing in the acts or conduct of the other partners to induce the belief that the partners with whom he dealt were the sole owners. Chazournes v. Edwards, 3 Pick. 11; Gordon v. Ellis, 2 C. B. 825, 829.

But the evidence before us would warrant a jury in finding, not only that the plaintiff acted in good faith, but that the active and ostensible partners had been held out as the sole owners of the property. The debt from the Robinsons to the plaintiff was for the interest which he had sold out to them in the assets of the former partnership between them. There was evidence tending to show that the property which he took in payment of that debt had formed part of those assets; that he bought it in good faith from the Robinsons, who were carrying on business at the old stand; that he had no knowledge of the existence of any other partnership, except from a vague rumor, and never knew that it did business, or that Chase, Parkinson and Greeley were partners therein, or saw them at the place of business; and that the bill of the goods, which the Robinsons gave him, was in the name of I. L. Robinson & Co. (which did not disclose that any other person was interested), and contained the names of the two Robinsons, and of no others, as partners therein.

The fact that the partners who did not concur in the sale to the plaintiff were special partners in a limited partnership gave them or their creditors no peculiar rights as against him. Although they were to receive, as their full share of the profits of the partnership, only a certain rate of interest upon the sums contributed by them to the capital, we assume that they are to be treated as

Plumley v. Birge.

jointly interested with the general partners in the partnership stock. And their abstinence from participation, in fact or in name, in the transaction of the business of the partnership, was made essential by the statute under which the partnership was formed, to their exemption from liability for debts of the partnership. But while the statute, if its conditions are complied with, shields them from being charged, as general partners, upon debts contracted by the partnership, it does not give them any greater rights than they would, if they had been general partners and liable as such, have had to avoid sales of goods of the partnership, which, by their assent, and for their protection and benefit, the ostensible partners had been enabled to deal with as apparently their own property.

For these reasons we are of opinion that the jury should have been instructed that if the plaintiff, by the manner in which the general partners dealt, and had been allowed by the special partners to deal, with the property sold to him, was induced to believe that it was the property of the general partners only, and, acting on such belief, bought it in good faith, and with no notice or knowledge that the special partners, or any other person than the general partners, had any interest therein, he was entitled to maintain this action.

Verdict set aside.

PLUMLEY V. BIRGE.

(124 Mass. 57.)

Infancy measure of discretion-animals.

▲ boy thirteen years of age struck a dog, which thereupon bit him. Held, that an action for such injury was maintainable, although the boy was old enough to know that the striking would be apt to incite the dog to bite him, provided the boy acted with such care as would be due care in a boy of his years.*

TOR

NORT to recover for damage sustained from the bite of a dog. The plaintiff, a boy thirteen years old, while upon a narrow foot bridge, which the defendant's dog was about to cross, and

Bee Keffe v. Milwaukee & St. Paul R. R. Co., 21 Minn. 207; 18 Am. Rep. 393; Kerr v. Porque, 54 Ill. 482; 5 Am. Rep. 146, and note, 148.

Plumley v. Birge.

which he had a right to cross, struck at him with a stick, and, as the dog came within reach, struck him over the back with the stick, and thereupon the dog bit the plaintiff on the leg. The opinion states the other facts.

Verdict for the plaintiff, and the defendant alleged exceptions.

H. B. Stevens, for defendant.

M. B. Whitney (G. M. Stearns with him), for plaintiff.

MORTON, J. This is an action of tort brought under the Gen. Stats., ch. 88, § 59, to recover damages for an injury to the plaintiff, a boy of thirteen years of age, from the bite of a dog kept by the defendant. The only question presented is as to the correctness of two rulings given by the court at the request of the plaintiff. Other instructions were given which were not excepted to, and which we must assume to have been full and accurate. We need consider only the second ruling given, because, if it was correct, it includes and necessarily determines the first.

The second ruling was that "if the plaintiff was old enough to know that striking the dog would be likely to incite the dog to bite, and did strike the dog, and did thereby incite the dog to bite him, he may nevertheless recover, if the jury think he was in the exercise of such care as would be due care in a boy of his years." We are of opinion that there is no error in this ruling.

It was necessary that the plaintiff, though a boy, should prove that he was in the exercise of due care. But due care on his part did not require the judgment and thoughtfulness which would be expected of an adult under the same circumstances. It is that degree of care which could reasonably be expected from a boy of his age and capacity. Munn v. Reed, 4 Allen, 431; Carter v. Towne, 98 Mass. 567; Lynch v. Smith, 104 id. 52; 6 Am. Rep. 188; Dowd v. Chicopee, 116 Mass. 93. If the court had ruled that, if the plaintiff was old enough to know that striking the dog would be likely to incite him to bite, he could not recover, it would have been erroneous. This is not the true test. It entirely disregards the thoughtlessness and heedlessness natural to boyhood. The plaintiff may have been old enough to know, if he stopped to reflect, that striking a dog would be likely to provoke him to bite, and yet, in striking him, he may have been acting as a boy of his age would ordinarily act under the same circumstances.

Stearns v. Quincy Mutual Life Insurance Company.

The age of the plaintiff was an important fact for the consideration of the jury; but the court correctly held that the true rule was, that he was entitled to recover if he was in the exercise of that degree of care which, under like circumstances, would reasonably be expected of a boy of his years and capacity. Meibus v. Dodge, 38 Wis. 300; 20 Am. Rep. 6.

Exceptions overruled.

STEARNS V. QUINCY MUTUAL LIFE INSURANCE COMPANY.

(124 Mass. 61.)

Insurance for benefit of mortgagee.

A mortgagor of land covenanted to keep the building standing on the land insured for the benefit of the mortgagee at a fixed 'sum; more than a year afterward, the mortgagor procured an insurance for a less sum on the building and his furniture, in his own name; the policy was not delivered to the mortgagee, and it was procured without his knowledge; after a loss on the building, the mortgagee notified the insurer of his claim, but the latter, having no knowledge of the terms of the mortgage, paid the amount to the mortgagor; in an action at law by the mortgagee in the name of the mortgagor, held, that his claim could not be enforced.

|ONTRACT on a policy of fire insurance. The opinion states the facts.

CON

G. A. Torrey & H. Bailey, for plaintiff.

W. A. Field, for defendant.

COLT, J. This is an action of contract to recover upon a policy of fire insurance on the plaintiff's dwelling-house and furniture. It is brought in the name of the plaintiff by one Andrews, who claims to have an equitable lien upon the money due on the policy, to the extent of his interest as mortgagee of the real estate. This claim on the part of Andrews is founded on a clause in the condition of the mortgage from Stearns, the plaintiff, to him, which declares that if the mortgagor shall, until payment of the debt secured, keep the building, standing on the land, insured against fire for the benefit of the mortgagee, at such offices as he shall