Manning v. Smith , 16 Nev. 85 ( 1881 )

By the Court,

Hawley, J.:

This action was brought upon a promissory note executed by the defendant to “Manning & Duck,” on the first day of January, 1879. The district court sustained a demurrer to the original and-amended complaint, and (the plaintiff refusing to further amend) entered judgment in favor of defendant. The -original complaint did not contain an}" averment as to who constituted the firm of Manning & Duck; nor did it allege that any member thereof was dead. It failed to show the essential facts necessary to authorize the plaintiff to maintain the action as*“ surviving partner of the late firm of Manning & Duck.”

The amended complaint alleges: “That prior to the nineteenth day of September, 1878, 'A. H. Manning and "William Duck constituted a copartnership under the firm name and style of Manning & Duck; * * * that on the nineteenth day • of September, 1878, said William Duck, one of the members of the said firm of Manning & Duck, died, leaving as sole surviving partner said A. H. Manning, in which capacity of surviving partner he brings this suit; that * * * on the first day of January, A. D. 1879, said M. J. Smith, defendant; in settlement of an account held by said firm against him, made, executed, and delivered, in the name of said defendant, his certain promissory note” (a copy of which is set out); “that the note is due and unpaid; that plaintiff, as surviving partner of the firm of Manning & Duck, is the holder of the note, it being the property of the late firm.”

We are of .opinion that these averments are sufficient to enable tbe plaintiff to maintain this action. Tbe allegations are not as clear and specific as they might have been made. They are,. however, equivalent to a positive averment that the note was made and delivered to the plaintiff, as surviving partner, in the name of the firm.

From the facts stated, the law will infer that the contract ■was made with the living party alone. (Bonne v. Ray, 5 Ark. 20.)

The judgment of the' district court is reversed and the cause remanded for trial. The district court will grant defendant a reasonable time within which to appear and answer the amended complaint.' >