Melvain v. Tomes , 21 N.Y. Sup. Ct. 31 ( 1878 )

INGALLS, J. :

The partnership firm of Tomes, Melvain & Co., composed of Benjamin Tomes, the defendant, and the plaintiff, Robert C. Mel-vain, individually, borrowed of the plaintiff as the executor and trustee of and under the last will and testament of Thomas F. Guión, deceased, thirty thousand dollars, of which seven thousand dollars have been repaid by said firm. It is alleged in the complaint, “ that on the first of May, 1874, the said partnership was dissolved by mutual consent, and the goods, wares and merchandise and assets of the said firm were, by and with the consent of Eobert C. Melvain, retained by said Benjamin Tomes, who in consideration thereof assumed and agreed to pay all the debts of the said firm, including the amount hereinbefore alleged to have been due from the said firm, to the said estate of Thomas F. Guión, deceased, of which the plaintiff is executor and trustee.” The plaintiff alleges a demand of the money and a refusal by the defendant to pay the same. Thus it appears that upon the dissolution of the partnership the defendant purchased the property thereof, and assumed and agreed to pay the debts including the one in question.

We cannot doubt the plaintiff’s right to recover. The case of Arnold v. Nichols (64 N. Y., 117), and the cases therein cited fully establish such right. • The defendant upon an adequate consideration agreed to pay the debt in question, and nothing is alleged which at law or in equity excuses the defendant from performing his agreement. This agreement inured to the benefit of the estate of Thomas F. Guión, which is represented by the plaintiff. It was not necessary to make Eobert C. Melvain a defendant in the action, as Tomes became individually liable upon his promise, and occupies no situation whereby he can compel Mel-vain to contribute even between himself and the latter, much less between himself and the estate which is a creditor.

The judgment must be affirmed with costs.

Davis, P. J., and Brady, J., concurred.

Judgment affirmed with costs.