Lewis v. Woolfolk ( 1849 )

Whitost, J.

Lewis and WoolfoTk being partners in business and having come to the determination to dissolve the partnership, Lewis entered into a bond to WoolfoTk, conditioned to pay all the partnership debts, and save WoolfoTk harmless therefrom, and to observe and keep a release of all demands, both for himself and one Julius Augustine, which release was recited in the bond. An action was brought on the bond by Woolfolk, and seven breaches assigned ; one for an arrest by Lewis, in a suit brought in his name, and in the name of Augustine, against Woolfolk, which is alleged to be a breach of the condition of the bond, inasmuch as that provides that Lewis shall keep and observe the release.

I am, however, of opinion- that this breach is not well assigned, as the assignment does'not show that the debt, upon which Hie suit was brought, was released. It is averred merely, that the account or claim upon which it was founded accrued before the date and execution of the bond. ‘ Now, this might well be, and yet the claim sued upon*not be one of those-released, for the reason that it might have come to Lewis and Augustine by assignment or transfer after the execution of the bond. The assignment of the breach should have shown that this was one of the claims released, and in order to do so, the plaintiff should have averred that the claim or demand not only accrued before the bond was-executed, but that it was then owned by Lewis and Augustine.

The other breaches assigned are, that certain partnership demands, which were transferred by Lewis to Woolfolk as just debts, were found, when suits were brought upon them, to be worthless and not collectable, for the reason that they had been previously paid; and it is averred that, in two instances, where suits were brought upon these demands, the defendant on the trial pleaded and proved accounts in offset to a greater amount than the demands sued upon, by which means Wool folk had a judgment rendered against him. These breaches are alleged to be within the condition of the bond, because they show that Woolfolk was not saved harmless from the partnership debts. -This, I think, is true only of those demands which had been overpaid, and in suits upon which Woolfolk had judgments rendered against him for the amount thus overpaid ; for I cannot think that the bond made Lewis guarantor of the demands transferred by him to Woolf ollc. The term “partnership debts” cannot mean anything more than debts which they in fact owed to other persons. If a person against whom they had an apparent demand had paid it, or had an offset against it, to its full amount, before the transfer to Wool folk, there was, in fact, no debt due either to or from them; and such a state of facts does not show a breach of the conditions of the bond. In the two eases aboye alluded to, in which the apparent debtors had offsets to a greater amount than the demands against them, the breaches are well assigned, and Lewis is liable on the bond for the amount thus paid by Wool-folk. To the replication of the plaintiff, assigning the breaches, the defendant filed a general demurrer, which was overruled. The defendant then filed a rejoinder, denying the liability of Woolf oik, and averring that he took the demands subject to all legal offsets, in an amicable division of the partnership accounts, etc. The plaintiff filed a surrejoinder, alleging that the demands were transferred to him as just debts, still due, etc.; and on the issue thus formed, the parties went to trial. The jury found a verdict for the plaintiff', upon which the court rendered a judgment for the sum of two hundred and sixty dollars.

The bill of exceptions shows that exceptions were taken to the ruling of the judge, during the trial, permitting the docket of Peter Coyle, a justice of the peace, to be read in evidence, which proved that in actions tried before him, founded on the demands above alluded to, the defendants proved payment on the demands or set-offs to the amount of the claims sued upon. This evidence was only admissible to prove those breaches which were well assigned, and was very properly objected to, so tar as it related to the others.

The judge, therefore, erred in receiving it, and for this error the judgment must be reversed. We deem it unnecessary to notice all the errors assigned, as the one alluded to is decisive.

Judgment reversed with costs.