Kender's Admr. v. Taber ( 1866 )

Opinion

by the Court :

This appeal is prosecuted by the administrator of J. A. Hender to reverse a judgment which the court rendered on the obligation of N. G-. Taber to Hender, dated November 1, 1848, in which he undertook that he and M. TIedrick would pay a certain debt which Hender and Hedrick then owned Levasser & Son; all other questions were continued for further adjudication. The court adjudged that Taber was only surety for Hedrick and released by the Statute of Limitations.

Hender and Hedrick had been mercantile partners, and when Hender sold his interest in the store to Hedrick this debt due Levasser & Son seems to have been the only indebtedness of the firm. Hedrick undertook to discharge the debt; afterward he made an agreement with Taber to become an ostensible partner for the purpose of giving him both a better credit and trade; whether this was before or after the date of this obligation we suppose is of but little consequence because as the debt to Levasser & Son had a prior existence which Hedrick undertook to discharge, his liability to Hender -was anterior to "the Arrangement with Taber, and Taber’s ostensible partnership had nothing to do with the individual credit given! ihis late partner Hedrick, consequently whether Taber’s ostensible partnership began before or after the date of this obligation cannot alter its legal effect. This statement clearly shows that Taber undertook as surety of Hedrick that the debt to Levasser & Son should he paid, and not as a principal, for it never was the debt of the ostensible firm of Hedrick ¿i Taber, but the individual obligation of Hedrick which Taber undertook should he discharged. There is no error in the judgment. Wherefore, it is affirmed.