Bass v. Taylor

Fisher, J.,

delivered the opinion of the court.

The complainant filed his bill in the Superior Court of Chancery, alleging that he and the defendants, N. M. and H. P. Taylor, in the year 1834, entered into a copartnership in the business of planting, in the county of Madison. That about the year 1836, they purchased the sixteenth section of land of a certain township, in the name of complainant, Bass, and N. M. Taylor. That about the year 1839, the copartnership accounts were settled, when the defendant, N. M. Taylor, fell in debt to the complainant in about the sum of $1000. That the purchase-money for the sixteenth section not having been paid, the trustees recovered a judgment in the Circuit Court of Madison county against the complainant and N. M. Taylor, in February, 1846, for about the sum of $21,000. That an execution was issued upon this judgment, levied upon the sixteenth section, and that the same was sold, and purchased by the trustees. That the execution was also levied upon twenty-seven slaves as the property of the complainant. At this stage of the proceedings, the trustees of the township entered into an agreement with the complainant to settle the judgment, which was as follows : They were to receive back the sixteenth section of land, two hundred acres of other land, and five thousand dollars in money, for which sum the complainant executed his note. The trustees having purchased the land under the execution, already held the title in themselves, and the compromise, in other respects, appears to have been consummated as alleged in the bill.

The object of the bill was to compel the defendants to reimburse to the complainant one-half of the sum of $5000, to pay their portion of the attorneys’ fee for defending the suit of the trustees, and to compel N. M. Taylor to pay the $1000 due on account of the settlement in 1839. The defendants both deny the copartnership as to H. P. Taylor, but admit it as to N. M. Taylor. It is conceded that the bill is not sustained as to H. P. Taylor, and the question is whether the complainant can recover against the other defendant, N. M. Taylor.

It is argued that the complainant having asserted a joint demand against tbe defendants, and having failed to sustain it as such, cannot recover against either. Whatever the general rule may be on this subject, it cannot apply to the present case. According to the allegations of the bill, the two Taylors were partners to the extent of only one-half interest in the concern, and the complainant of the other half; and the party representing this interest, whether consisting of one or many, would be bound equally with the complainant to pay the partnership debts; and these debts having been paid by the complainant, the other partner claiming an equal interest, would be bound to reimburse to the complainant one-half of the money paid. The defendant, in such case, could not say that he was taken by surprise, by the bill’s asserting a claim against two, instead of one, for the reason that he himself discloses the fact, and aids in establishing it, that he was an equal partner with the complainant; and being equally interested in the property, he is liable to pay his portion of the charges against it.

We are, therefore, of opinion that this objection cannot be urged to defeat a recovery against N. M. Taylor.

It is next said that N. M. Taylor did not agree to the terms upon which the judgment was settled. This may be true; but it is not seen how he can for this reason excuse himself for not paying his portion of a judgment which bound him without his consent.

It is very true, as a general rule, an obligation cannot be created without the consent of the party to be bound; and if what was done by the complainant could be considered as an obligation binding the defendant to the performance of some duty, it. would certainly be regarded as void. But such is not the light in which to consider the transaction; for the effect of it was not to create, but to discharge the party from an existing obligation; and while his consent is necessary to create an obligation, it is not necessary when it is to be discharged. Here there was the balance of a judgment for more than $18,000 against the complainant and the defendant N. M. Taylor; and the question Avas not how an obligation to satisfy the judgment for a less sum could-be created so as to bind them, but hoAv it could be consummated so as to bind the plaintiffs in the judgment. No question existed as to whether the debtors were bound for the Avhole amount, but the question was whether they could be discharged by the payment of a less sum. The execution had already been levied upon the complainant’s property, and he was of course anxious that the judgment should be satisfied. The defendant, however, says that he could have made a better compromise than that made by the complainant. This allegation is not only not supported by proof, but is shown by the defendant’s own letter to be untrue. But admitting it to be true, it could only avail the defendant by his showing that the complainant either paid more than the amount of the judgment, or that he was informed of, or knew of the more advantageous terms upon which the judgment could be settled, before going into the compromise.

We are, therefore, of opinion that the complainant is entitled to an account and decree in regard to the $5000, and the attorney’s fee paid; but not for the $1000, due on account of the settlement in 1839.

The account will embrace the $5000, — the difference in value of the land owned by the defendant, — and also the land of the complainant, and a decree will be entered for the balance.

Decree affirmed as to H. P. Taylor, and reversed as to N. M. Taylor, and cause remanded.

HaNdy, J., having heretofore been of counsel in this case, took no part in the consideration of it here.

A reargument was asked for, but refused.