Gibbs v. . Bates

Rapallo, J. The only question in this case is, whether the agreement of Bates, dated August 25th, 1862, to discharge the liabilities of the firm of Bates, Griffin & Co. bound him to pay the $1,200, which Gibbs had borrowed from Clark Perry in Chicago, in July, 1857. The referee has found that this money was obtained from' Perry by Gibbs. That Perry intended to deal, and supposed he was dealing with Gibbs individually, and not with the firm, and never made any claim against the firm. That the money was in fact obtained by Gibbs for the benefit of the firm, and was employed in their business. That it was included, in-a cash payment of $1,518.02 made by Gibbs at Chicago for account of the firm, but that immediately after the payment, Gibbs rendered to the firm a statement, from which it appeared that the payment had been paid by him, and it did not appear that he had borrowed the money, and he *194 was thereupon credited on the firm books with the whole amount of $1,518.02. That he knew of this credit, and it remained on the books from 1857, and stood there in 1862, when the agreement in question was made. That no credit had been given on the books to Perry, and that Gibbs, though he knew that he was personally credited with the money, never made any objection to the' credit or requested any correction of it. This money having been loaned to Gibbs on his individual responsibility and applied to the use of the firm, he was clearly entitled to the credit which was given to him on the books. On a settlement of the partnership accounts of the firm, it would have constituted an indisputable claim in his favor against the firm. By the terms of the agreement of July 25th, 1862, all claims of Gibbs against the firm were expressly excepted from the undertaking of Bates to discharge the liabilities of the firm. When that agreement was made, this indebtedness had for years been treated on the partnership books, with the knowledge of Gibbs, as a debt due to him, and not to Perry. It is fairly to be presumed that the agreement of July, 1862, was made with reference to this state of facts. That this indebtedness was understood as being embraced in the -exception; that the amount to be paid by Gibbs to Bates was fixed with reference to the state of Gibbs’ account with ’the firm, and that, if $1,200 of Gibbs’ credits had stood on the books to the credit of Perry, instead of Gibbs, a corresponding increase would have been required in the amount •stipulated by the agreement as payable by Gibbs to Bates for his undertaking to discharge the firm debts. There was no error, therefore, in the conclusion of the referee, that the debt to Perry was not a liability of the firm within the meaning -of the contract of August 25th, 1862. Any presumption which might arise from the facts stated in the additional finding as to the memorandum furnished by ■Gibbs to Kimball, in August, 1857, is rebutted by the finding *195 that Gihbs never objected to the credit being given to him or requested its correction. The judgment should be affirmed with costs. All the judges concurring, judgment affirmed.