McCord v. Tennille

CLOPTON, J. — Appellants sued out an attachment against the estate of E. A. Butler, which was executed by serving process of garnishment on the appellees. The evidence discloses that Butler and Tate were formerly partners in the mercantile business. Butler purchased Tate’s interest in the partnership, agreeing to pay him therefor about eleven hundred dollars, and to pay the outstanding debts of the firm. Butler carried on the business in his own name for about twelve months. He was also indebted to Tennille. Butler failed to pay the debts of Butler & Tate, and Ten 170 nille & Tate purchased his stock of goods, notes and accounts, in consideration of the payment and satisfaction of his individual indebtedness due to them respectively, and their promise to pay specified debts of Butler & Tate. There is no controversy as to the houesty and amount of the indebtedness, or as to the adequacy and sufficiency of the consideration. The bona fid s of the transaction is admitted; but it is insisted that it is fraudulent in law. The agreement of Butler to pay the debts of Butler & Tate as part of the purchase price of Tate’s interest in the partnership was, as between him and Tate, a primary individual obligation to pay the debts, so as to discharge Tate from liability therefor, as binding as the promise to pay the purchase price in excess of the debts. On his failure to pay them within a reasonable time, or if Tate had paid them, he would have had a right of aclion founded on the promise made to him. Release from this liability, and the assumption of these debts by Tennille & Tate constitute, pro tanto, a valuable and valid consideration, in support of the contract for the sale of the goods. Though Tate was bound for the debts as partner, they were, as between him and Butler, the individual debts of Butler, which he was permitted to prefer; and it was lawful for him to sell his goods to Tennule & Tate, or any other person in consideration of a promise to pay the debts, the transaction being otherwise free from fraud. The court did not eTr in holding that the sale was not constructively fraudulent. Affirmed.