Ransom v. Pomeroy

5 Blackf. 383, 1840 Ind. LEXIS 84

• Court: Indiana Supreme Court
• Decided: November 24, 1840
• Status: Published

Opinion

Blackford, J.

Assumpsit. The declaration states that Evan B. Hobson and Niles Gregory, trading in the name of Hobson & Gregory, .were indebted to the plaintiff for goods sold and delivered in the sum of 300 dollars, and in consideration thereof promised to pay, &c.; that Hobson afterwards died, and the defendant is his administrator, Gregory being still living; that payment has not been made, &c. General demurrer to the declaration and judgment for the defendant.

The defendant contends that this suit could only be sustained against the surviving partner; and that is, no doubt, the common law. Bac. Abr. tit. Obi. D. 4. But our statute has changed the law on this subject. On the death of Hob-son, the plaintiff' had his choice either to sue Gregory or the administrator of Hobson. The circumstance that this is an unwritten contract does not, we think, make any difference. The defendant is the representative of Hobson, who was jointly bound with Gregory for the payment of a debt; and to such a case the statute applies. R. S. 1838, p. 358.

J. B. Niles, for the plaintiff. J. S. Newman, for the defendant.

Per Curiam.

The judgment is reversed with costs, to be levied, &c. Cause remanded, &c.