Wolf v. Welton

The opinion of the court was delivered by Woodward, J. — Welton & Reffert dissolved partnership by Welton selling- out to Reffert, and retiring from the business, on the latter agreeing to pay $150, “ and all the debts of the firm of Welton & Reffert, and keep said Welton free from any and all costs and damages in the settlement of'the same.” On the same day, Wolf agreed in writing with Welton that he would be “ security for the true and faithful performance of the above agreement on the part of T. W. Reffert.” On this agreement the present suit is brought. It is not denied that there has been a breach of Reffert’s agreement, but it is said Wolfs undertaking was an entire contract, and two previous actions having been brought against him upon it, and recovery had for two firm debts, which Welton had to pay, it is denied that another action will lie. The defendant’s mistake consists in considering his contract an entire and not a severable one. Reffert’s undertaking was to pay the debts of the firm. These were several — not connected or dependent. Wolf’s contract was, that Reffert should pay these several debts. The parties could not possibly have contemplated one entire performance, but several distinct performances — as many, indeed, as there should be debts. “When an agreement,” said Judge Washington, in Perkins v. Hart, 11 Wheaton 251, “ embraces a number of distinct subjects, which admit of being separately executed and closed, it must be taken distributively, each subject being considered as forming the matter of a separate agreement after it is so closed.” This is the principle on which these contracts are not to be considered as indivisible and entire. When a debt is established against the firm, which Reffert refuses to pay, Wolf is bound to pay it, as if that was the very debt in respect of which he contracted. And it does not affect his liability that he has already paid two other debts, or that others remain behind, to be paid hereafter. See the subject of entire and severable contracts, fully treated in the note of Hare & Wallace to the case of Cutter v. Powell, 2 Smith’s L. C. p. 44, et seq. The judgment is affirmed.