Opinion
August Term, 1848.
Where a partnership was about to be formed, and one who was to be a member purchased a chattel, which was afterwards used by the firm, and agreed by them to be taken from him upon his retiring from the business, and the note be gave for the chattel was, in consequence of this agreement, surrendered to him: Held, that the other partners were bound to pay the original vendor.
APPEAL from the Superior Court of Law of ROWAN, at Spring Term, 1848, Manly, J., presiding.
The case is as follows: The defendant and one Bencini entered into a partnership to run a line of stages between the city of Raleigh and Salisbury. Afterwards, and before the company commenced operations. Bencini purchased, for the use of the firm, from the plaintiff, a carryall wagon at the price of $100, for which he gave his note. This carryall was subsequently put by Bencini into the stock, at the price he was to give, and it was used by the firm a short time thereafter. Bencini, becoming embarrassed in his circumstances, sold out his stock to the other partners, the defendants. In the settlement of their accounts he told the defendants he was not entitled to any credit on account of the carryall, as he had not paid for it, and it had been purchased for the firm, and devoted to their use, and it might be considered the common stock. To this the defendants assented, and the wagon was accordingly taken by them, and was worn out in their service. The agent of the plaintiff afterwards presented the note to McLean, one of the partners, and demanded payment, who answered that it must and should be paid, and subsequently he declared (14) to the agent of the plaintiff the amount was due, and should be paid. The note was subsequently surrendered up to Bencini.
On behalf of the defendant it was argued that the promise of the defendants was a promise to pay the debt of another, and, not being in writing, was void under the statute against frauds, Rev. St., ch. 50, and, at all events, the other partner, Adams, was not bound. Under the charge of his Honor the jury returned a verdict for the plaintiff, and the defendants appealed.
Ellis for plaintiff.
No counsel for defendants.
We do not consider the plaintiff's case as coming within the operation of the statute of frauds. Section 10 of that act declares void all promises made to pay the debts of another, when the party to be bound does not enter into some writing or memorandum, signed by him or his agent. If, therefore, we believed that the promise made by the defendant McLean was to pay the debt of another without any new consideration for it, we should not hesitate to reverse the judgment given below. We do not so consider it, but look upon it as a new original contract growing out of the one made by Bencini. The action is not upon the note given by Bencini; that was surrendered up to him upon the promise made by McLean to pay for the wagon, and he (Bencini) was consequently discharged from all liability on it. Without inquiring whether the defendants would not be liable under the first contract, as joint partners with Bencini in the purchases with him, our opinion is founded on the agreement made by the parties to take the wagon and pay the plaintiffs for it. Bencini was a copartner with the defendant in the line of stages running (15) between Raleigh and Salisbury, and purchased the wagon for the use of the firm. It was by them received and used, and, when the partnership was dissolved and Bencini left it, we gather from the case that the defendants were about to credit him with the value of the wagon. Upon being informed by him that it was not paid for, but that the plaintiff had his note for it, they agreed to keep the wagon and to pay the plaintiff for it. The contract on which the action is brought is an original contract between the parties upon a sufficient consideration in law. 1 Williams Saunders, 211, note 2; Cooper v. Chambers, 15 N.C. 261. The second ground of defense cannot be maintained. The promise of one partner to pay a debt due by the firm binds all the partners. Adams was present when the parties agreed to receive the wagon as partnership property and to pay the plaintiff for it.
PER CURIAM. Judgment affirmed.
Cited: Haun v. Burrell, 119 N.C. 547; Satterfield v. Kindley, 144 N.C. 460.