*554On the appellant’s motion for a rehearing, his counsel argued that every payment made by one who, though he may suppose himself to be under a legal obligation to pay, is in fact under no such obligation, is a 'oolmmbary payment (Parsons v. Gloucester Bank, 10 Pick., 534; Clark v. Dutcher, 9 Cow., 674; Town of Ligonier v. Ackermann, 46 Ind., 559); and they insisted that the bonds put in evidence did not show any legal liability of the plaintiffs to pay the judgment against Aldrich, Smith & Co., citing Thompson v. Taylor, 30 Wis., 73.
Lyon, J.The argument of the learned counsel for the appellant in support of the motion for a reargument is able and earnest. We have carefully considered it, but it fails to convince us that we ought to grant the motion. The position that the payment of the Milwaukee judgment by Mann Brothers was a mere voluntary payment, and hence that they coüld not recover back the money so paid, was fairly presented by the former appeals (38 Wis., 107, 114), and ruled adversely to the appellant. Such ruling is res adjudicata in the case.
Further deliberation has confirmed us in the opinion that the variances between the bonds described in the complaint and those read in evidence on the trial, are quite immaterial. It is believed that none of the cases cited in the former or present argument hold otherwise. The cases are to the effect that in an action on a contract, the contract must be proved as alleged. The distinction between those cases and this case was pointed out in the former opinion.
In the last decision of this case, it was not held that the payment of the Milwaukee judgment by Mann Brothers would not have been a mere voluntary payment, even though the only conditions of the bonds were to save harmless members of the firm of Aldrich, Smith & Co. from the debts or liabilities of that firm. It was only said in the opinion that we were not prepared to hold the contrary doctrine. We did not then, and do not now, deem it necessary to decide the ques*555tion, for tbe reason (which ought to have been stated in the opinion, but was inadvertently omitted therefrom) that the bonds were not pierely to save harmless, but, in addition to covenants to do so, each contains the following condition:
“The condition of the above obligation is such, that if the above bounden Joseph Mcmn, Henry Mctnn and Hermann Mann, or either of them, their or either of their heirs, executors or administrators, shall well and truly pay, cancel and discharge, or cause to be paid, cancelled and discharged, within a reasonable time after the date hereof, all the indebtedness and liabilities of every name and kind or description whatsoever, and remaining unpaid at the date hereof, due or to become due, of and against 'William Aldrich, James E. Aldrich, Hezekiah IT. Smith, Martin B. Medbury and John IT. Med-bury, some or all of them, as late copartners in trade at the village of Two Bivers, state of Wisconsin, under and in the firm name and style of Aldrich, Smith & Co., * * the above obligation to be void.”
It is quite true that the above condition is followed by others “ to keep and save harmless ” only, but these were evidently inserted ex abundanti cautela, and do not operate to restrict or limit the effect of the former condition.
By the Oowt. — Motion denied.