Fagg v. Hambel

Dillon, J. i con-consider-The arrangement between the partners, according to the allegations of the third count of the answer, was: That the two remaining members of the firm should assume and pay the firm debts. In this arrangement it is not alleged that the plaintiffs were consulted. _ It is not even distinctly alleged that Hall went to the plaintiffs and obtained their promise to release him; but the allegation is, that “Tan Winkle & Wheeler went to the plaintiffs and informed them of the agreement and of their undertakings, and the said plaintiffs then and there released this defendant,” &c. The subsequent insolvency of Wheeler & Yan Winkle is averred, but it is not averred that the appellant, relying upon the promise to release him, was thereby lulled into repose or prevented from obtaining indemnity or security We need not, therefore, consider the force and effect of such an allegation if it had been made. The allegation that the hogs purchased of the plaintiffs were on hand at the time of the dissolution, and of the promise of the [143] remaining members of tbe firm to pay tbe plaintiffs is immaterial without an allegation tbat the appellant had a lien on or possession of them for bis security, and parted with them on receiving plaintiffs’ promise to release bim. It is to be remarked tbat tbe promise of Wheeler & Yan Winkle is not evidenced by bill or note, nor was- tbe alleged release to plaintiff evidenced by a receipt. Wheeler & Van Winkle were before bound to pay the debt. Their new promise gave to tbe plaintiffs nothing tbat they did not before possess. Tbe terms, time or amount of tbe indebtedness to. tbe plaintiffs were in no way altered. Tbe appellant is not shown to have parted with any security or to have acted 'upon the faith of tbe promise to release bim, for, as before remarked, it is not clearly alleged tbat tbe promise to release tbe appellant was made directly to him. Under these circumstances, tbe promise to release was without consideration ; the new promise is not without execution, to be taken as á satisfaction of tbe old liability. By the force of the authorities in this State and elsewhere, we must affirm the ruling of the court below. Frentress v. Markle, 2 G. Greene, 533, directly in point, and see also Hall v. Smith, 10 Iowa, 45; S. C., 15 Id., 584; Harrison v. Close, 2 Johns., 448; Mitchell v. Hawley, 4 Denio., 414; 3 Am. Law Reg. (N. S.) art. Accord and Satisfaction, p. 65, et seq.; Story on Cont., 982 a; 2 Pars. on Cont., 194, 195. Affirmed.