§ 47. In general, any person competent to contract.-As a general rule, any person may be a partner who is capable of entering into contractual relations. If he has the legal ability in his own right and in his individual capacity to transact the business contemplated, he may usually unite with another person to carry on that business in partnership.

This being the general rule, it is unnecessary to pursue it further in respect of normal persons, but in regard to those who labor under some general disability, more particular mention is desirable. Thus

§ 48. Aliens as partners.-Aliens who are subjects of nations which are at peace with each other may enter into partnership, but not alien enemies. Upon the breaking out of war between their respective countries, however, their capacity to act as partners is ordinarily terminated, and their partnership, as will be seen, is usually suspended if not dissolved.1

§ 49. Infants as partners.-An infant may be a partner.2 His contract of partnership and his contracts as a partner are

1 See post, § 369.

2 Bush v. Linthicum (1882), 59 Md. 344, Mechem's Cas. 55, Burd. Cas. 154; Adams v. Beall (1887), 67

Md. 53, 8 Atl. 664, 1 Am. St. R. 379,
Mechem's Cas. 51; Dunton v. Brown
(1875), 31 Mich. 182; Osburn v.
Farr (1879), 42 Mich. 134, 3 N. W.

not void, but they are voidable at his option, and he may interpose his infancy as a defense against personal liability as a partner. During the continuance of the relation, however, he has all of the rights and powers of a partner. Thus, he has equal right, with his copartner, to the possession of the assets of the firm; he may collect and pay debts; and may make contracts in the firm name, which, though he may repudiate liability, will be binding upon his adult copartners and upon the partnership assets. He is entitled to an accounting and to his share of the profits like other partners.

He may disaffirm his contract of partnership and avoid personal liability as a partner either to his copartner or third persons; 5 but, notwithstanding such disaffirmance, it is held that his interest in the partnership property remains liable to

the partnership debts, thus creating a sort of non-statutory limited partnership, with the infant as the limited partner. So if he has paid money for the privilege of being admitted into the business, he cannot, it is held, after continuing in the business for a period, voluntarily withdraw and recover back what he has paid, unless it was procured from him by fraud." Bankruptcy proceedings may be maintained against the firm and its assets, though no decree can be made against the infant partner personally. The adult partner cannot repudiate firm contracts made by the infant on the ground of the latter's incapacity, but if he has been induced to enter into the partnership by the infant's fraudulent representation that he is of age, he may dissolve the partnership for that reason.,

§ 50. After he becomes of age, the infant partner may ratify the partnership transactions and thus become liable for obligations incurred during his minority. His ratification need not be express unless a statute so requires, but may be inferred from his acts and conduct, as from his dealing with the subject-matter of the contract after attaining majority. Whether his continuing to act as a partner after becoming of age is of itself enough to constitute ratification has been doubted. In actions by and against the partnership, the infant partner should usually be made a party, though the English and many of the American courts have held it improper to make an infant partner a defendant in an action against the firm.10

6 Lovell v. Beauchamp [1894], Ap. Cas. 607, Burd. Cas. 155; Bush V. Linthicum, supra; Shirk V. Shultz (1887), 113 Ind. 571, Gilm. Cas. 125; Yates v. Lyon (1874), 61 N. Y. 344; Pelletier v. Couture (1889), 148 Mass. 269, 19 N. E. 400, 1 L. R. A. 863; Conary v. Sawyer (1899), 92 Me. 463, 43 Atl. 27, 69 Am. St. R. 525; Hill v. Bell (1892), 111 Mo. 35, 19 S. W. 959; Gay v. Johnson (1855), 32 N. H. 167.

7 Adams v. Beall (1887), 67 Md. 53, 8 Atl. 864, 1 Am. St. R. 379, Mechem's Cas. 51. But see Sparman

v. Keim (1880), 83 N. Y. 245, Mechem's Cas. 737.

8 See In re Dunnigan (1899), 95 Fed. 428; In re Duguid (1900), 100 Fed. 274.

9 Upon the question of ratification, see Salinas v. Bennett (1890), 33 S. Car. 285, 11 S. E. 968; Dana v. Stearns (1849), 3 Cush. (Mass.) 372.

10 See 1 Chitty on Pleading, pp. 14 and 50, notes; 1 Lindley on Partn. (2d Am. ed., Ewell), 74 and notes; Osburn v. Farr (1879), 42 Mich. 134, 3 N. W. 299.

§ 51. Insane persons as partners.-The effect of insanity upon capacity to become a partner is not easy to state briefly. Mental unsoundness is of many forms, arising from many causes, and existing in many degrees. It may be obvious or it may be occult. It may have been judicially passed upon, or it may still be in the legally debatable stage. All that can be briefly said about it is that the partnership contract of an insane person, not yet judicially determined to be incompetent, is, like his other contracts, usually voidable only and not void; and if the other party was ignorant of the insanity, and the contract has been executed and appears to be fair, the contract of an insane person will not be set aside unless the parties can be restored to their original condition.11 After an adjudication of insanity, his subsequent contracts are usually held void. An adjudication of insanity before he entered into the partnership may well have a different effect from one made subsequently.

§ 52. Married women as partners.-At common law, a married woman was incapable of making contracts, except where she had a separate estate or except where her husband was a convicted felon, or was an alien enemy and abroad, or had abandoned her, or when husband and wife were judicially separated. Her capacity to enter into partnership was subject to the same limitations. In most of the states her incapacity to make contracts has been more or less removed by statute, and she may enter into partnership with persons other than her

11 See Behrens V. McKenzie (1867), 23 Iowa 333, 92 Am. Dec. 428; Fay v. Burditt (1882), 81 Ind. 433, 42 Am. Rep. 142; Jordan v. Kirkpatrick (1911), 251 Ill. 116, 95 N. E. 1099; Burnham v. Kidwell (1885), 113 Ill. 425; Gribben v. Maxwell (1885), 34 Kan. 8, 7 Pac. 584, 55 Am. Rep. 233; Gillet v. Shaw (1912), 117 Md. 508, 83 Atl. 394, 42 L. R. A. (N. S.) 87; Merchant's Nat. Bank v. Coyle (1919), 174 N. W. 309; Young

- Minn., v. Stevens (1868), 48 N. H. 133, 97

Am. Dec. 592, 2 Am. Rep. 202; Carter v. Beckwith (1891), 128 N. Y. 312, 28 N. E. 582; Blinn v. Schwarz (1904), 177 N. Y. 252, 69 N. E. 542, 101 Am. St. R. 806; Reams v. Taylor (1906), 31 Utah 288, 87 Pac. 1089, 120 Am. St. R. 930, 11 Ann. Cas. 51, 8 L. R. A. (N. S.) 436; McLaughlin v. Daily Telegraph Co. (1904), 1 Austral. Com. L. R. 243. As to the effect of subsequently occurring insanity upon the partnership, see post, § 365.

husband under substantially the same conditions which now apply to any other of her contracts. 12 She could not, at common law, be a partner with her husband; and, even under the modern statutes, the same disability still continues in many states.18 This conclusion is based sometimes upon the insufficiency of the statutes to justify it, and sometimes upon reasons of public policy which are thought to forbid such business relations between husband and wife. A number of states, on the other hand, deny any such reasons of policy, and find, in the broad terms of statutes giving the married woman power to own and control property and to make contracts generally as though she were unmarried, ample capacity to enter into partnership relations even with her own husband.14

12 Vail v. Winterstein (1892), 94 Mich. 230, 53 N. W. 932, 34 Am. St. R. 334, 18 L. R. A. 515, Mechem's Cas. 739. Contra, in South Carolina, Vannerson v. Cheatham (1894), 41 S. Car. 327, 19 S. E. 614. The question of her husband's consent may be material. It is required by statute in Illinois. See, also, Sanders v. Schilling (1909), 123 La. 1009, 49 So. 689.

13 See Artman V. Ferguson (1888), 73 Mich. 146, 40 N. W. 907, 16 Am. St. R. 572, 2 L. R. A. 343; Mechem's Cas. 61; Gilkerson-Sloss Com. Co. v. Salinger (1892), 56 Ark. 294, 19 S. W. 747, 16 L. R. A. 526, 35 Am. St. R. 105; Seattle Board of Trade v. Hayden (1892), 4 Wash. 263, 30 Pac. 87, 16 L. R. A. 530, 31 Am. St. R. 919; Fuller v. McHenry (1892), 83 Wis. 573, 53 N. W. 896, 18 L. R. A. 512; Bowker v. Bradford (1885), 140 Mass. 521, 5 N. E. 480; Payne v. Thompson (1886), 44 Ohio St. 192, 5 N. E. 654; Scarlett v. Snodgrass (1883), 92 Ind. 262; Carey v. Burruss (1882), 20 W. Va. 571, 43 Am. Rep. 790; Mayer v.

Soyster (1868), 30 Md. 402; Barlow v. Parsons (1901), 73 Conn. 696, 49 Atl. 205; Brown v. Chancellor (1884), 61 Tex. 437.

14 See Suau v. Caffe (1890), 122 N. Y. 308, 25 N. E. 488, 9 L. R. A. 593, Mechem's Cas. 64; Louisville R. Co. v. Alexander (1894), 16 Ky. L. R. 306, 27 S. W. 981; Belser v. Tuscumbia Banking Co. (1895), 105 Ala. 514, 17 So. 40; Dressel v. Lonsdale (1892), 46 Ill. App. 454; Heyman v. Heyman (1904), 210 Ill. 524, 71 N. E. 591; Lane v. Bishop (1893), 65 Vt. 575, 27 Atl. 499. In Tennessee, see Theus V. Dugger (1893), 93 Tenn. 41, 23 S. W. 135. In Maine, see Bird Co. v. Hurley (1895), 87 Me. 579, 33 Atl. 164; Stewart v. Todd (1919), Iowa —, 173 N. W. 619; Hoaglin v. Henderson (1903), 119 Iowa 720, 94 N. W. 247, 97 Am. St. R. 335, 61 L. R. A. 756, Gilm. Cas. 121; Morrison v. Dickey (1905), 122 Ga. 353, 50 S. E. 175, 69 L. R. A. 87; Burney v. Grocery Co. (1896), 98 Ga. 711, 25 S. E. 915, 58 Am. St. R. 342, Burd. Cas. 11.