Harris v. Lindsay

WASHINGTON, Circuit Justice (charging jury). It is certain that the rights of creditors cannot be altered by any private agreement, which the partners may choose to make with each other when they dissolve their connection. Although the partnership effects are by such agreement to be retained exclusively by one of the partners, who Is also to discharge the debts, the recourse of the creditors against the retiring partner remains unchanged, unless by some positive act, which directly, or by a fair inference, amounts to an agreement to discharge him. An indulgence granted by a creditor would not amount to such an agreement. Nor are we prepared to say that even by forbearing to sue, an express agreement to renew the notes of the co-partnership, by accepting those of the paying partner, would discharge the other partner. As to this, we are not called upon in this case to express an opinion. But if, with a full knowledge of the agreement between the partners, that one is to retain the effects and pay the debts, a creditor shall enter into a totally new contract with such partner, by which the nature of the partnership debt is totally changed, so as to become a different debt from that which the retiring partner was bound to pay, or such as to subject him to a different kind of responsibility; such new contract will amount to an acceptance, by the creditor, of the paying partner as his debtor, and to a discharge of the other. That is precisely the present case. The plaintiffs, with full knowledge of the agreement between Tomlinson and the defendant Lindsay, continued to deal with, and to give credit to, the two subsequent co-partnerships of Jessy Tomlinson & Co. and Tomlinson & Chambers; and after the termination of the last of these co-partnerships, they entered into a new contract with Tomlinson, by which they agreed to consolidate the balance due by the three concerns into one sum, and to receive Tomlin-son’s notes for the aggregate amount, divided into three parts, neither of which answered to the balance due by either house, and to pass the said notes to the credit of Tomlin-son alone, when the same should be paid. It was then so contrived by this new arrangement, to which Lindsay was no party, nor had given his assent, that until all the notes, representing the entire aggregate amount of the three balances (for two of which he was not liable) were paid, Lindsay could never plead payment of the balance due by Lindsay and Tomlinson, even although a larger sum than that due by them should have been — 637 — paid by Tomlinson, out of. the very funds retained by Tomlinson for that purpose. So entire a change of the debt, and of Lindsay’s responsibility, operates to extinguish the partnership debt and to discharge' Lindsay, as effectually as if Tomlinson had given his bond to the plaintiffs for the same. Verdict for defendant. [A rule for a new trial was discharged in Case No. 6,124.]