Boyd v. Webster , 58 N.H. 336 ( 1878 )

Among the assets which the plaintiff took from the firm of Boyd, Corey, Ahl Co., was the balance due them from the defendant upon the unsettled account between the parties. This was in effect the assignment of a chose in action; and the subsequent dealings between the plaintiff and the defendant are evidence of an assent by the latter to the assignment, and of a promise on his part to pay whatever was due, sufficient to enable the plaintiff to maintain an action upon it. The referee has found that the defendant did so promise, and the reported facts show that be was warranted in so finding. The action, therefore, so far as this part of the claim is concerned, is well enough brought in the name of the plaintiff. 1 Ch. Pl. 15, and notes; Barnes v. Insurance Company, 45 N.H. 21, 24, and authorities cited; Armsby v. Farnam, 16 Pick. 318.

As to the remainder of the claim, it is well settled, that a debt due to all individual and a debt due to him as surviving partner of a firm may be joined in the same action. The rights of action which were vested in the firm survive, and become vested in the surviving member of the firm, not as the representative of another person, as an executor or administrator is, but as the survivor of the partnership representing himself, and being all that is left of the firm. Adams v. Hacket, 27 N.H. 289.

Allowing an action to be referred, without objection, is evidence on the question whether a party assented to the reference. Deverson v. Eastern Railroad, ante, 129; Smith v. Fellows, ante, 169. But the question of consent is one of fact, to be determined at the trial term. This appears be a proper case for an auditor; and if it had been sent to one, the result would not have been changed, nor would the course of the trial have been different. We cannot see that it makes any difference whether the tribunal is called a referee, or auditor, or commissioner, when it appears that the trial would be the same.

Case discharged.

BINGHAM, J., did not sit.