Leihy v. Briggs

Mokan, J. Appellee brought this action against appellant to recover for the price of a phaeton, single harness, robe and whip, sold and delivered. Plaintiff’s evidence, which consisted of depositions of witnesses, clearly showed that said articles were, on the order of Acker & Leihy, of which firm appellant was at that time a member, shipped from San Francisco, Cal., to appellant’s wife at Eureka. The articles were ordered in the name of Acker & Leihy by appellant, with the knowledge of his partner Acker, and were charged against the firm on the books of appellee. Appellee’s counsel contends that because they were purchased for appellant’s wife they could not properly be charged to the firm and that the price of them didnot become a firm debt. Articles intended for the use of one of the partners, may be purchased in the firm’s name, if so purchased with the consent of all the partners, and when articles are so purchased on the partnership credit and charged to the partnership account, the debt will not be changed from a joint debt of all the partners to a several debt of the one who used the chattels, by the refusal of the other partners to treat the debt as a firm debt. Appellant swears that the articles in question were charged to him on the books of Acker & Leihy, and went with other accounts into the settlement between him and his partner. The fact that the debt sued for was a firm and not an individual debt, would not avail appellant as a defense to this suit. But the contention is, that being a firm debt it was assumed with all other firm debts and agreed to be paid by his partner Acker, in a settlement of his partnership matters, and that in consideration of his making such settlement appellee agreed to take Acker for the indebtedness due to him from the firm, and to release appellant from liability for said indebtedness. Appellant testified upon the trial that a difference arose between himself and his partner, and that appellee, to whom the firm was indebted in a large amount, came to Portland, Oregon, where the firm was doing business, and arranged a settlement between appellant and his said partner. That the settlement was that appellant should take some lots situated in Chicago and $800 in money for his interest in the firm, and that Acker should assume and pay all the firm debts; that said settlement was negotiated by appellee, and in consideration of appellant’s agreeing to such settlement, appellee agreed to take Acker for the whole firm indebtedness and release appellant. A schedule of the firm debts was made out showing those assumed by Acker, and among others on said list was the charge for the phaeton, harness and whip, for which recovery was now sought. Appellant’s account of the settlement and agreement is supported by the testimony of his son, and is practically without contradiction. We are, therefore, compelled to find that the agreement of Acker to pay the firm debts was made, and that the agreement of appellee to take Acker for the firm debts and release appellant in consideration that appellant would agree to the settlement, was also made. This agreement, in our opinion, constitutes a good defense to the action. The rule is, that if one partner promises the creditor to assume and pay the entire debt, and the creditor promises to look to him alone, a substitution of debtor is effected, and the other partner is released. “ That is founded on the doctrine that the sole liability of one of two debtors may, under many circumstances, be more beneficial and convenient than the joint liability of two, and therefore the change is founded upon a valuable consideration; and whether it was actually a benefit in each particular case will not be looked into, but the agreement will be sustained.” Bates on Partnership, Sec. 505. “If one of the debtors agrees to surrender, and does surrender to the other his interest in the property and funds which they own together, an agreement of the creditor to discharge him and look to the other is well founded on that consideration. Backus v. Forbes, 20 N. Y. 204; see, on same point, Thompson v. Percival, 5 B. & Ad. 925; Lyth v. Ault, 7 Ex. 667; Collyer v. Moulton, 9 R. I. 90; Walstrom v. Hopkins, 103 Pa. St. 118. The finding and judgment of the Superior' Court must be reversed and the cause remanded for a new trial. Reversed and remanded.