M'Calla v. Rigg

10 Ky. 259, 3 A.K. Marsh. 259, 1821 Ky. LEXIS 101

• Court: Court of Appeals of Kentucky
• Decided: April 7, 1821
• Status: Published

Opinion

Judge Owsley

delivered the opinion.

This writ of error, with supersedeas, is brought by MV Calla to reverse a judgment recovered against him oa the following writing:

The Building Committee of Fayette Hospital,

To Messrs Briggs ⅜ Rigg, Dr.

Por amount of two bills of scantling delivered, $1098 10 Suprr. Cr.

1818, January 12, By cash, - - - 800 00

Balance due, - $298 10

In behalf of said committee, as their chairman, I acknowledge the above balance of.$2i>8 10 to be due said Briggs and Rigg.

AND. M’CALLA, (cbm. com.)

The action was brought by petition in the circuit court, in the name of Rigg as survivor, and the judgment obtained against M’Calla by default,

Two questions are made by the assignment' of errors— 1st, as to the propriety of bringing a petition and summons in the name of Iligg only as the surviving obligee; and 2d* as to the liability of M’Calla under the writing on which the action is brought. _ . . .

This court entertains uo doubt, but the action m the name of the survivor may be sustained. It has heretofore been decided by this court, that a petition may be maintained by an executor, on an obligation given to his testator; and the reason is equally strong in favor of a ¿urviying obligee.

We are also of opinion, that the writing imports aper-sona! liability on M’Calla. It would not have done so. if be were net one of the building committee; but from his signature be must be understood to be one of the committee, and tinder his acknowledgement of the committee being indebted, we apprehend he must be chargeable.

The judgmeut must be affirmed with costs and damages,