Walker v. Patterson , 36 Me. 273 ( 1853 )

Shepley, C. J. —

The law applicable to this case,, appears to have been correctly stated in the case of Davis v. French, 20 Maine, 21.

Assuming the contract subscribed by the defendant, as exécutor, to bind himself, if made upon sufficient consideration, the only question presented will be, whether such a. consideration is exhibited by the agreed statement.

The arbitrator appears to have determined only the amount of the debts due from the partnership, and the amount of its assets in the hands of the survivors. These facts having been ascertained, the amount to be paid out of the private property of each member would be determined. It might happen, that one would be required to pay more than his share from the inability of another member to pay his due proportion.

The defendant by his contract appears to have agreed to pay the exact third part, that would be payable from the estate of his testator, and the amount' of a bill paid by the survivors for insurance of the partnership property. If he had secured the estate from any further or other liability for partnership debts, that might have constituted a sufficient consideration for his contract. But he does not appear to have done so. The creditors of the partnership might have collected their debts from the estate of his testator-, and the executor’s remedy would have been to collect the amount over the testator’s share of the other members. They would not have been jointly liable for each other, beyond the amount of the assets of the partnership. Nor would they have been bound by the memorandum made by the defendant, and not signed by them; “W. & P. to pay $1578,42.”

It is not perceived, that the rights of either member of the partnership were at all varied, or that the defendant derived any personal advantage from the contract signed by him, or from the submission and award.

Proof, that a written contract for payment of a debt due from another, was made for a valuable consideration, must come from the party, who would enforce it; and the proof to be derived frbm the agreed statement, is not sufficient.

Plaintiff nonsuit

Tenney, Appleton and Cutting, J. J. concurred.