Loper v. Welch — 10 N.Y. Super. Ct. 644

Majority

p. 644

Loper and Davis v. Welch.

Headnote

In on action "by several plaintiffs to. recover for property sold and delivered, a complaint which states that the plaintiffs sold and delivered, is good, without averring that they were partners. Such a complaint states a case of joint ownership. Several persons may be joint owners of any kind of property, without being partners.

At Chambers,

March 25, 1854,

before Duer, J.

The complaint alleged that the plaintiff had bargained and sold to defendant, and at his special request, had delivered to one O’Brien, goods, merchandise, and building materials of the value of $340, and that there still remained due to them thereon the sum of $162.75, for which sum, with interest, they prayed judgment. The defendant demurred, and specified in the demurrer several grounds of objection, but the only one insisted on was that the complaint did not aver that the plaintiffs were partners, and as such had made the sale in question. Held, that such an averment is only necessary when the right of the plaintiffs to maintain the action depends upon their partnership, but as, without being partners, they might prove a joint ownership and joint contract, and upon such proof ■would be entitled to recover, the objection was untenable,

p. 645

and as the other objections were plainly frivolous, the plaintiffs were entitled to judgment. Demurrer overruled, and judgment for plaintiffs, with costs.