No. 13,720.

#### Goldman et al. *v.*Biddle et al.

*'Contract.*— Partnership.—Agreement *by Third Person to Pay*Creditors.— *Complaint.*— A complaint by partnership creditors against the members of the firm and G., wherein it is alleged that G., for the purpose of aiding the partners to defraud their creditors, took possession of the partnership property, and in consideration thereof agreed to pay all the creditors of the firm a certain per cent, of their claims, but has failed to pay the plaintiffs any part of the sum due them, wherefore a money judgment is demanded, states a good cause of action against G. for the amount which he agreed to pay.

From the Huntington Circuit Court.

*J. B. Kenner*and *J. I.*Dille, for appellants.

*B. F. Ibach,*for appellees.

Olds, J.

This action was brought by Henry C. Biddle, Thomas F. Tierney, Earl Atkinson and Robert McComb, plaintiffs, against Harvey H. Miller, Lovina J. Redinger and Douis J. Goldman.

It is an action upon an account and proceedings in attachment, and other creditors were made parties, and personal judgments were rendered in favor of the different creditors. 'The defendant Goldman filed separate demurrers to the sev*493eral complaints, which were overruled, and exceptions reserved. The only error assigned and argued is by appellant Goldman, who assigns as error the overruling of his demurrers to the several complaints.

The complaints are all substantially alike. In the case of Biddle and others the complaint alleges that in the year 1884 the defendants Miller and Redinger were doing business under the name of Miller & Redinger, and while so in business became indebted to the plaintiffs in the sum of $552.39 for goods sold and delivered by plaintiffs to them at-their instance and request, a bill of particulars of which is filed with the complaint, marked exhibit “A,” all of which sum is due and unpaid. That in August, 1884, Goldman, for the purpose of aiding, abetting and assisting Miller & Redinger to cheat, hinder, delay and defraud their creditors, took possession of the stock of goods and property belonging to said Miller & Redinger, agreeing with said Miller & Redinger to pay twenty-five per cent, of the amount due each and all of their creditors, he, the said Goldman, at the time well knowing that the said Miller & Redinger were indebted to the plaintiffs in the sum aforesaid, and he, the said Goldman, then and there agreeing to pay the said plaintiffs the sum of $128.09, in consideration of said Miller & Redinger turning over to him said stock of goods and property, which was then and there of the value of $800; and said Goldman took possession of said stock of goods and property, and claims to own all of the same, and has not paid any part of said amount due the plaintiffs as aforesaid. Prayer for a money judgment.

The complaint alleges a contract by which Goldman, for a valuable consideration received from Miller *&*Redinger, agreed to pay the plaintiffs twenty-five per cent, of the amount Miller & Redinger were owing to the plaintiffs, and a failure to pay the same, and that it was due.

It states a good cause of action. Indeed, it is not contended but that the complaint is good upon that theory, but it *494is claimed by counsel for appellant Goldman that it is a complaint to set aside a fraudulent sale of personal property, and that, if good at all, it must be good upon the theory on which it is pleaded.

Filed April 25, 1889.

Counsel are in error in placing such a construction upon the complaint. It alleges an agreement on the part of Goldman to pay to the plaintiffs a specific amount in consideration for Miller & Redinger turning over to him the goods, and the prayer is for a money judgment. It is evident the case was tried upon that theory, as the judgment is for the amount it is alleged Goldman agreed to pay. The same question is presented by the ruling on the demurrers to each complaint.

There is no error in the record for which the judgment should be reversed.

Judgment affirmed, with costs.