Haverhill Trust Co. v. Buckland

Peaslee, C. J. While there are procedural errors in this case, there are none which cannot be corrected on the record as it stands. The plaintiff, holding an undisputed claim against the partnership, brought suit against the surviving partner and the administratrix of the deceased partner. It should have been brought against the surviving partner as such, Bailey v. Cooper, 79 N. H. 323; and the administratrix’s motion that the action be dismissed as to her should have been granted. Apparently, this was in substance the course pursued. The plaintiff’s counsel declared that he was pursuing the partnership only, and that “we don’t care whether she comes in or not.” The presiding justice said “the verdict will run against the partnership.” In order to perfect the record, an order should be entered granting the administratrix’s motion to dismiss the action as to her, the writ should be amended to set Mills out as surviving partner, and judgment should be entered against him in that capacity. Case discharged. All concurred.