Goelet v. M'Kinstry — 1 Johns. Cas. 405

Majority

p. 482

Goelet against M’Kinstry.

Headnote

If one of'two partners in trade purchase goods for -both, and one of them dies, an action of indebitatus assumpsit may be brought against the survivor, without taking notice of the partnership or the death of one and the survivorship of the other.

This was an action of assumpsit for goods sold and delivered to the defendant. The cause was tried at the last circuit in the city of New Yórk, when a verdict was found for the plaintiff, for 430 dollars and 85 cents, with liberty "for the plaintiff to alter the verdict to 234 dollars and 92 cents, incase the court should be’of opinion, on thejfollowing facts, that the plaintiff was not entitled to the full amount of the verdict.

The plaintiff gave in évidence an account for goods sold and delivered to the defendant alone, which, with the interest amounted to 234 dollars and 92 cents.

p. 483

He then offered in evidence, another account for goods sold and delivered by him to the defendant and one Hatch, as partners.

It was proved that Hatch was dead, and that the defendant had since acknowledged the account to be just, and, after striking the balance, had promised to pay it. This balance when added to the sum due on the separate account of the defendant, made the amount found by the verdict.

The declaration stated that the defendant alone was indebted without taking notice of the partnership between him and Hatch, or that Hatch was dead, and that the defendant had survived.

* Troup, for the plaintiff,

cited Comb. 383 ; 2 [*406] Term Rep. 479.

The case of Hyatt v. Hare, (Comb. 383,) is in point. It was there decided, that “if there be two partners in trade, and One of them buy goods for them both, and the other dieth, the survivor may be charged by indebitatus ^ assumpsit generally, without taking notice of the partnership, or that the other is dead and he survived.” This is not only reasonable, but well settled law. The plaintiff must have judgment.^[1]

Judgment for the plaintiff.

(a) (a) At law upon the death. of a partner the legal remedies against him in respect of the partnership contracts are extinguished, and the creditor being precluded from suing the representatives of the deceased, can maintain an notion against the surviving partner or partners only. £¡teph. N. P. 2407. See also Story on Partnership, 512, 513. i Chit. PI. 39, 40, 3d ed. Bac. Ab. t. Obligation, D. 4, Com. Dig. Abatement, F. 8. Godson v. Good, 6 Taunt. 587. Bovill v. Wood, 2 Maule & Selw. 23: Richards v. Hunter, 1 Barn. & Aid. 29. Collyer on Partnership, 503, 2d ed. That it is not necessary to notice the deceased partner in declaring against the survivor, see 1 Chit. Pi. Dunlap’s ed. 40; Richards v. Hunter, ut supra, 3 B. & B. 302; 2 T. R, 479; Vin. Ab. Tit. Partners, D.