The opinion of the court was delivered by
Gibson, C. J.That the purchase was originally on separate account, has not been pretended at the bar. It was made hy a. partnership'constituted not of individuals but of firms, arid'limited to the act of purchasing only. .The original contract, then, being joint, binds both firms, unless it has been satisfied, or severed by substituting their several for their joint liability. I lay out of the case as a matter with which the vendors had nothing to do, the separate receipt by each firm, of its share of the purchased article; a separation of their interests by the partners themselves, being consistent with- the contract of sale as well as with the object of the partnership. The first question then is, whether' by the acceptance of bills drawn by each of the partner firins at'York Haven, on its parent' house at Baltimore, the joint- contract was merged in their separate responsibility.- By the terms of tlie sale, payment was to *380he made, at tlxe delivery of the article or on demand, in the notes of particular hanks specified in the memorandum. At the time of delivery, separate receipts were given to the vendors,, which they afterwards delivered up on receiving the bills on Baltimore. For these bills- they gave to Byrnes Sf Co. a written acknowledgment of payment when the contents should be received; and to Tyson Sf Co.-on the following day, a similar acknowledgment of payment in pull, on the same .condition. The transaction, therefore, was evidently a mode of payment by the partnership, and if so, it can have no more effect in producing a- severance of any unsatisfied joint responsibility, than if the partnership had- paid in the bills of any third’persons of which it had accidently become the holder. The hills of Byrnes 4' Co. can by no fair construction be considered as. any thing, else than payment pro tanto of the joint debts; and the hills of Tyson 4- Co. for the balance, which were agreed to he in full when they should he paid, clearly shows that it was so considered b.y the parties themselves. The difference in the terms of the receipts is remarkable; and I am unable to perceive how the omission to specify in the first also, that payment of the hills for which it was given should be in full,, can be referred to any thing but an understanding that it should he in part, and consequently in part of the joint debt-, as it could not be otherwise than in full if made on separate account. There is therefore, positive evidence on the face of the papers, that no severance was intended: But even without this,- why should the separate acceptance of bills from each of two joint debtors, dissolve their joint liability more than would the separate acceptance of counterfeit-bank notes or coin? All that the creditor has a right to require, is payment in fact, for whether joint or several can make no difference to him. Each partner is separately the agent of all the others, with authority to pay the' whole or any pant of the debts; and payment by him is essentially payment’on joint account; so that the acceptance of securities from the individual partner does not necessarily or even naturally imply a relinquishment-of any right against the partnership. Why then should'the creditor be prejudiced in his relations with the partnership, by having accepted what he bad no right to refuse! I take it, the responsibility of the partnership was not relinquished by it, unless the naked acceptance of the bills were satisfaction in law, without regard to.the question of severance in fact, and this I proceed to consider. ■ ;
In relation to the partnership,-each of the partner firms may be treated as a stranger capable of dealing with it in the character of debtor orcreditor; and as by the contract of sale, the wheat was to-be paid for in- the notes -of particular banks, the subsequent acceptance of bills drawn by the partner firms, was payment in the bills of a stranger, of a precedent' debt. On no othe.r hypothesis *381could there he the shadow of a defence; for as one simple contract will not merge in another, it has invariably been held that the debtor’s own bill or note for the price of goods sold, will not extinguish the original liability. Ld. Raym. 1430. 2 Stra. 1218. Willes, 406. It merely operates as an extension of credit, and prevents "aTrecurrence to the original contract of sale before the bill or note has come to maturity. 1 Esp. 3. We have then payment of a precedent debt in the bills of a third person, which has been universally held since Clark v. Munden, 1 Salk. 124, not to be absolute satisfaction, although it is otherwise where such payment has been in pursuance of the original bargain. I feel no disposition to review the authorities, but I may safely affirm that no case can be found in which any other doctrine was ever held, In Sheely v. Mandeville, 6 Cranch, 264, the acceptance of a hill -was barely held to be a sufficient consideration for an agreement to discharge the precedent debt; which, when dependent on facts and circumstances, is a subject for the consideration of a jury. In Arnold v. Camp, 12 Johns. R. 409, acceptance of the separate note of one of the partners, was inferred to he satisfaction only from the fact that the partnership note was given up, a circumstance that does not enter into the case here. There are in fact no circumstances to take it out of the general rule, hut enough to rebut a legal implication of satisfaction, even were the rule different. It would be decisive in any state of the law, that the parties themselves expressly agreed to take the bills as satisfaction only when they should be paid.
In this aspect, the authority of Milliken v. Brown, 1 Rawle, 391, makes the defendant’s case -neither better nor worse. If by the terms of the receipt given to Tyson & Co. the original contract were severed, or to be discharged by payment of that bill only, then Tyson Sp Co. would he exonerated, both jointly and separately, in-’ dependently of the rule which givesone joint-debtor the benefit of a release intended only for the other; and although the consequences might be important to Byrnes Sp Co. they could not add to the defence of Tyson fy Co. which would he complete of itself. An absolute discharge of one of the debtors, is a postulate of the argument, which being once gran led, makes an end of the question of joint liability, without regard to the question of liability by the other in a separate action. It seems to me that neither of these firms was discharged from the original contract, .and that in .every point of view, the cause is with the plaintiff!
Smith, J.Admitting the contract between the firm of Tyson Sp Co. and Byrnes Sp Co. and the Messrs. Pollocks, to he joint, (which however, might be doubted, were it not, that the parties had themselves admitted it to be so,) it does appear to me, that by the subsequent acts of the parties, it was severed, and the firm of Tyson *382& Co. discharged from the performance of, or all liability 4on .the .same. The wheat was divided between Tyson Sf Co. and Byrnes Sf Co. and W. and T. Pollock accepted, on the 11th of May, 1817, from Tyson Sf Co. for their part of the wheat, a draft on IF. and JV, Tyson, of Baltimore, for three thousand six .hundred .and thirty-five dollars and eighty-seven, cents, and receipted for the same, “ as in full to that day.” At maturity the draft was paid. On.the day before, (the 10th of May, 1817,) the plaintiffs had received, four drafts from Byrnes A Co. on Samvel Byrnes of Baltimore, for four thousand six hundred dollars, fo.r their part of the wheat, which last mentioned drafts were not paid. About five years.and more after all this, the Messrs. Pollocks bring this suit to .recover on the contract of the 5th of April, 1817,from TysonSf Co. the amount of the draft received by them on Samuel Byrnes. And for .this sum and interest, amounting to six thousand fiyehundred and twenty-five dollars, the court below rendered judgment, being for the wheat received by Byrnes Sf Co. and of which Tyson Sf Co. did .not receive a grain. These circumstances go to show, that the Messrs. Pollocks looked to each firm, for the amount of wheat received by them respectively, after the contract had been made, and discharged them from their original joint liability. I am, therefore, of the opinion, that the judgment should be reversed’. A majority of this .court, however, are of a different opinion, and the judgment must .therefore be affirmed.
Judgment affirmed.
Ross, J. concurred with Smith, J.