The case was as follows: On 1 October, 1837, the plaintiff and the defendant Martin entered into partnership as merchants in Wilkesboro, with a capital of $6,000; whereof the plaintiff put in (112) $4,000 and Martin the residue. The business was to be continued five years, unless sooner dissolved by consent. In October, 1839, the plaintiff advanced for the use of the firm the sum of $808.12, and Martin gave him a memorandum thereof in the form of a note of "Patterson Martin," to the plaintiff for the money. On 9 January, 1840, the parties agreed by articles to dissolve the partnership upon the following terms: Patterson was to take certain merchandise (some of which had been shipwrecked and had not arrived) at certain rates on the cost, to the amount of $6,000, and if upon an inventory thereof it should not amount to that sum, the deficiency was to be made up by any debts due to the firm which he, Patterson, might select; and Martin was to have all the residue of the effects of the firm, of whatever kind, consisting of *Page 90 notes, accounts, judgments, county claims and property of every other description, amounting, as per inventory, to the sum of $17,000, or thereabouts — he, Martin, further agreeing and obliging himself "to pay all the just debts and liabilities of whatever kind soever now due or owing by the firm of Patterson Martin, within two years thereafter, and to indemnify and save harmless the said Patterson against loss or damage on account of the debts or liabilities of the said firm."
On the same day Martin and the other defendants, as his sureties, entered into a bond to Patterson in the sum of $12,000, in which, after reciting the agreement for a dissolution, on the terms above mentioned, the condition was that it should be void in case Martin should not perform the agreement on his part, and pay all the debts and liabilities of the said firm within two years thereafter, and indemnify and save harmless the said Patterson from the same, according to the tenor and effect of the said agreement on the part of Martin.
The plaintiff was compelled to pay several debts of the firm, which he demanded from Martin, and also the payment of the sum of (113) $808.12, advanced by him in October, 1839, as before mentioned; and, Martin having failed to pay the same, the plaintiff brought this suit in July, 1844, on the bond, suggesting as breaches the nonpayment of the said sum of $808.12, and also the other sums so paid to certain other creditors of the firm. On the pleas, of conditions performed and no breach, the jury found for the plaintiff, and assessed his damages to the sum of $3,782.18, subject to the opinion of the court upon the point, reserved on the foregoing facts, whether the said sum of $808.12 constitutes a debt of the firm within the meaning of the said bond, judgment to be entered for $3,782.18 if the opinion of the court was in the affirmative, and, if in the negative, the damage to be reduced to $2,683. 44.
The court was of opinion with the defendants on the point reserved, and gave judgment for $2,683.44, and the plaintiff appealed. The manner of closing this partnership was so loose that it is probable one of the parties may have had this sum in his mind as still being due, and not the other, so that the former may, with a good conscience, demand payment, while the latter may, in equally good faith, refuse it. But from the terms of the agreement of dissolution, and the circumstances of the case, the Court is of opinion that the $808.12 is not legally to be considered as continuing to subsist as a debt of the firm. It constitutes a part of the plaintiff's interest in the joint effects, and it *Page 91 must, consequently, be supposed to have been included in the demands on those effects for which the plaintiff took a part of them, to the value of $6,000. On what account did the plaintiff get that sum? In order to entitle him to that now in dispute, he must say that the $6,000 was for his stock and profits exclusively. But how is that shown? If (114) it had been declared so expressly in the articles, or if it could be seen that a statement of the firm had been made up, and that upon it there would be due to the plaintiff about that sum for his part of the capital and the gains, then this sum might appear to be still due, as a debt for an extra advance of money.
Indeed, a statement of the firm, if truly made, must have shown this as an outstanding debt, with the others. But nothing of the kind was prepared. It appears, indeed, that an inventory of the debts to the firm and of the other effects (except the merchandise) had just been taken; but it is obvious that was a mere list of debtors, and of the amount of the debts on their face, and it did not ascertain the good and bad debts and compute the true value. It was not an estimate of the assets of the concern or an account of the respective partners in company. This is put beyond doubt by the fact, stated in the articles, that the goods in which the plaintiff was, as far as they would go, to be paid the $6,000, had not been inventoried nor their value determined. No list of the debts owing by the firm appears to have been taken. The conclusion, then, seems certain that this was a bargain for a dissolution without striking a balance, and at a venture on each side. The inference follows that when the plaintiff took out of the common property $6,000 for his share, it was for his whole share thereof, and not merely for his original stock and conjectural profit. The memorandum given to the plaintiff by his partner can make no difference in law. It is only one evidence of the advance, and is no better than an entry in the books to the plaintiff's credit. We suppose that this sum of $808.12 was, of course, to the credit of his account; and the difficulty is to distinguish and say that the $6,000 did not extinguish that credit as well as one for the plaintiff's original share of the capital. In fine, when the plaintiff, one of the partners, took a large sum, exceeding all his advances of (115) every sort, and took it without computing either profit or loss, and without saying on what accounts in particular he received it, the legal conclusion must be that it was meant to cover his entire share and extinguish every demand he had on the effects of the firm; for one item of his demand can be no more said to survive than another. Therefore, although third persons might have debts against the firm, the partner, thus provided for on dissolution, could not be said to have them.
PER CURIAM. Affirmed. *Page 92