Wilby v. Phinney
Massachusetts Supreme Judicial Court
The action was assumpsit by the plaintiff, who was the surviving partner of James Harrison, against the defendant, as administrator of the said Harrison; and had, at a former term, been submitted, by a rule of the Court, to certain referees, who, at March term, 1816, made a report of certain facts proved before them, submitting to the decision of the Court the law arising thereon.
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The action was assumpsit by the plaintiff, who was the surviving partner of James Harrison, against the defendant, as administrator of the said Harrison; and had, at a former term, been submitted, by a rule of the Court, to certain referees, who, at March term, 1816, made a report of certain facts proved before them, submitting to the decision of the Court the law arising thereon. These facts were, in substance, as follows: The said Harrison, the defendant’s intestate, and the said Wilby, in the year 1807, entered into articles of copartnership under their hands and seals, a copy of which…
1Opinion of the CourtWilde, J.
Several points have been made in this case, some oí which may be easily disposed of.
The first is an objection to the form of the action. It has been *112contended that assumpsit cannot be maintained, and that the plaintiff’s remedy is either by action of covenant on the indenture of copartnership, or by action of account.
As to an action of covenant, there is no ground on which it could be maintained; for the present action is founded on matter collateral to the covenants. The only *one which seems, even prima facie, to relate to the present subject of controversy, is that which limits the right…
2Cases cited2 opinions
- Brigham v. EvelethMassachusetts Supreme Judicial Court · 1813
- Gardner v. BarkerMassachusetts Supreme Judicial Court · 1815
3Cited by21 opinions
- Harrigan v. GilchristWisconsin Supreme Court · 1904
- Deane v. CaldwellMassachusetts Supreme Judicial Court · 1879
- Berwin v. CableMassachusetts Supreme Judicial Court · 1943
- Bush v. ClarkMassachusetts Supreme Judicial Court · 1879
- Hewitt v. HayesMassachusetts Supreme Judicial Court · 1910
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