GEORGE A. MEBANE vs. C. G. & P. W. SPENCER, ADM’RS. OF J. H. SPENCER.
A contract was made with two partners for the keeping of certain horses. Afterwards one of the partners died and the surviving partner gave Iris notes for the amount due on the contract. These notes not being paid and being tendered back to the surviving partner; Held, that the original cause of aGtion was not merged, that suit might be brought against the representatives of the deceased partner, to recover damages for the breach of the contract.
Appeal from the Superior Court of Law of Orange County, at the Spring Term, 1846, his Honor Judge Dick presiding.
This was an action on the case in assumpsit. The declaration contains four counts, the first and second upon promissory notes, given by Daniel Murray and the intestate, Isaiah Spencer ; and the third and fourth upon contracts therein set forth. The case is as follows : Daniel Murray and Isaiah Spencer were the owners of a line of stages and jointly concerned in running it between Raleigh and Greensboro’. They contracted with the plaintiff to keep eight horses for the year 1841, as set forth in the 3d count, for the sum of $850, and the same number of horses for the year 1842, for the sum of $1,000. The action is brought to recover the amount due upon the notes1 and also upon the special contracts. On the trial it was admitted by the plaintiff, that, in the year 1842 and after the death of Spencer, the defendant, Daniel Murray, by *424agreement with him, removed four of the horses, and that he claimed upon the contract for that year, only for the horses he did keep. It further appeared, that, on the 19th May, 1842, the defendant, Murray, &s surviving partner, executed to the plaintiff two promissory notes, one for the sum of $823 83, for the keeping of the horses for the year 1842. These notes were in the possession of the plaintiff and were produced on the trial and were tendered to the defendant. The case states that the notes, stated in the 1st and 2d counts were proved, and the/contracts stated in the 3d and 4th counts proved precisely as stated. Upon the closing of the testimony, the defendant submitted to the Court that the plaintiff should be called and non-suited, because of the alleged variance between the contracts as set forth in the 3d and 4th counts, and the contracts, as they contended, which had been established by the notes given on the 19th of May, 1842, and because of the removal of the horses, by agreement between the plaintiff and the defendant, Murray.
The motion of the defendants was overruled, and a verdict and judgment having been rendered for the plaintiff the defendants appealed.
Norwood, for the plaintiff.
II Waddell, for the defendants.
Nash, J.
The motion was properly overruled by the Court. The plaintiff was unquestionably entitled to a verdict on his first counts, and from the statement of the case, as little doubt can exist as to the two last. The contracts, as set forth, were proved. Iiow then could the plaintiff be non-suited ? If it had been proved that the notes of the 19 th of May had been paid, or in any other manner their value had been made available to the plaintiff, the Court might have been called on to instruct the jury, that the defendants were entitled to a verdict on the 3d and 4th counts ; and it would have been his duty *425so to charge. But such was not the fact. They were given by a surviving partner, for debts due by the firm, and were unpaid. The original contracts were not thereby extinguished. But the plaintiff was at liberty to sue upon them, and recover what was justly due him, upon tendering back the notes. 19í7i Yes. 291, ex parte llodgkinson. Nor does the removal of the four horses, as stated, have any other effect than diminishing the amount which the plaintiff was entitled to recover.
Pea Curiam. Judgment of the Court below affirmed.