The defendant bought the plaintiff’s interest in the marble business, which he was then carrying on as one of the firm of Joyner & Co., and made a written contract, by which he agreed “to discharge him from all liabilities on account of purchases of stock and materials as one of the original firm of Joyner & Co.” At the time when the contract was made, the firm had contracted for stock and materials to the amount of $313.66, of which $149.15 had been already delivered, and the rest was delivered afterward. There can be no doubt that the whole was “ a liability on account of purchases of stock and materials,” within the meaning of the contract. The dissolution of the partnership could not free the plaintiff from the obligation to pay for goods which he had ordered, and which had been in part delivered.
The making of the note in the name of the firm after its dissolution was an unauthorized act of the other partner; and being received by the creditors without a knowledge of the dissolution, and upon the supposition that it was the note of the partnership to whom they had sold their goods, they might have disowned it, and sued the contracting parties upon the original cause of action. But the note was dated back to a time when the first partnership was subsisting, and they sued upon the note, and for the balance remaining due upon the account. If the plaintiff chose to treat this note as binding upon him, and *408as a payment by himself of so much of the account upon which he was liable, it certainly did no wrong to any other party in interest, and he might rightfully do so. His payment of the note, if the note were regarded as a payment pro tanto of the account, would be merely the payment in a new form of his original liability, and, so far as the defendant is concerned, could not be considered a voluntary payment. We therefore think that if the declaration had conformed to the facts proved, the defendant would have been liable.
But there is a technical variance between the declaration and the proof. The first count of the declaration avers that the note of $200 was due at the time when the defendant made his contract of indemnity. The second count is for money paid, but it refers to the first count for the particulars of the payment, and is stated as being for the same cause of action. An amendment is therefore necessary. But the case having been tided and rightly decided upon its merits, the amendment may be made after verdict, upon proper terms, without doing any wrong to the defendant. Cleaves v. Lord, 3 Gray, 66. Stone v. White, 8 Gray, 589.
If, therefore, the plaintiff shall file an amendment in conformity with the facts, in the superior court, it is to be allowed, and he can then have judgment upon the verdict, taking no costs since the trial. Exceptions sustained,.