Island Savings Bank v. Galvin

36 A. 1125, 19 R.I. 569, 1896 R.I. LEXIS 83

Opinion

Matteson, C. J.

The note sued on does not purport to be a note of the N ewport Laundry Co., a partnership composed of the three persons who were the makers of the note. It is simply the joint note of those persons, of whom the defendant’s testator was one. The Judiciary Act, cap. 13, § IT, (Gen. Laws R. I. cap. 233, § IT,) provides that, “Unless otherwise provided in the contract upon the death' of any joint contractor his representatives may be chai’ged in the same manner as such representatives might have been charged if such contract had been several instead of joint: Provided, that the plaintiff shall first exhaust the partnership estate, if such contract is a partnership contract.” As the note does not purport to be a partnership contract, and does not provide in it that on the death of either of the makers his representatives shall not be charged as if the contract had been several instead of joint, we are of the opinion that the suit is in accordance with the statute quoted, and, therefore, that it is properly brought against the defendant, as the representative of the deceased. The demurrer to the first plea in bar is sustained, and plea overruled.

William P. Sheffield, Jr., for plaintiff. Charles Acton Ives, for defendant.

The record, discloses no demurrer to the defendant’s plea by way of equitable defence; and therefore the sufficiency of that plea, as a defence, discussed in the brief filed by the parties, is not before us.

Case remitted to the Common Pleas Division for further proceedings.