Loper v. Welch

3 Duer 644

• Court: The Superior Court of New York City
• Decided: March 25, 1854
• Status: Published

Opinion

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