The opinion of the Court, was delivered by
Roycjs, J.The verdict has negatived the fact, that the plaintiff ever requested any statements to be furnished, in pursuance of the defendant’s covenant, and the fact, that the defendant ever furnished them. But the verdict, having been taken by consent, and after a judgment on the demurrer, the plaintiff is still entitled, under the demurrer, and in support of the second breach assigned, to the benefit of those averments in his replication, which stand demurred to. It must therefore be taken, for the present purpose, that the defendant did furnish statements of the outstanding debts against the company, omitting the three notes, as alleged in the declaration. The question will then be, whether, upon the whole record, relating to the second breach, the plaintiff is entitled to judgment.
The covenant, now in question, obliged the defendant to pay the outstanding debts, “ with the avails of the partnership demands, and other company property.” It did not oblige him to do this, as the claims against the firm should respectively fall due, but “ as soon as reasonably might be, after the expiration of the partnership.” But the plea alleges that, before the partnership ended, all the goods and stock in trade were sold and delivered to Downer, by the joint act of both these parties, and that the payment for the same was received by the plaintiff alone. It also alleges, that, when the partnership was determined, the defendant sold all his interest therein to the plaintiff. These facts, of themselves, aside from the plaintiff’s bond to pay the outstanding debts himself, furnish an answer to this part of the defendant’s obligation. The obvious reason is, that before the time had arrived, when his covenant required him to pay the debts, all the means, with which he was to make payment, had, by the assent and contract of the plaintiff, been withdrawn from his possession and control. He, therefore, became discharged from his covenant by the plaintiff’s act.
*32Another ground of defence is supplied by the plaintiff’s bond, unless the effect of that instrument is qualified by the matter set forth in the replication. If in force, according to its terms, the bond must, unquestionably, operate to control the covenant, in order to.prevent a circuity of action.
The replication does not charge fraud upon the defendant, and, therefore, none is to be imputed. As the law does not presume fraud, it is not to be inferred by argument. Hence, we are only at liberty to suppose, that the defendant, in his statements of outstanding debts, omitted the three notes through forgetfulness or mistake, and that the plaintiff executed the bond, without being apprised that such notes existed. But proof of these facts, alone, could not be admitted, in an action upon the bond, to destroy its validity, or to restrict or qualify its operation. It follows, for aught that appears to us, that the bond might be deemed to have imposed a legal obligation upon the plaintiff, commensurate with its terms; and these required him to pay all existing debts of the partnership. Whether a Court of equity would be disposed to rectify or vacate the contract, is a question, with which, at present, we have no concern.
Judgment of county Court affirmed.