Action on a contract by the terms of which defendant is alleged to have assumed the payment of a debt owed by another person to plaintiff. The court peremptorily directed a verdict for defendant at the conclusion of the evidence offered by plaintiff, and plaintiff appealed.
Henry E. Shackelford and Cordell Colvin were *485partners engaged in mercantile business at Glasgow, under the firm name of Shackelford & Colvin. Becoming embarrassed financially, they conveyed their partnership assets to Thomas Shackelford and Marion F.. Colvin, on December 6, 1895, under the terms of the following written instrument: “In consideration that Thomas Shackelford and Marion F. Colvin have assumed to pay to the Glasgow Savings Bank the sum of sixty-five hundred and sixty-four, 59-100 dollars/ evidenced by two promissory notes, each for one thousand! dollars, executed by Thomas Shackelford and C. R. Brown as our security, one for one thousand dollars, executed by John H. Turner and W. F. Cunningham as security, two notes each for two thousand dollars executed by Thos. Shackelford and Marion F. Colvin as our security, and an overdraft for $191 to said bank and have also agreed to pay fifteen hundred dollars on our debts now due, we, Harry E. Shackelford and Cordell Colvin do hereby assign, transfer and deliver to said Thomas Shackelford and Marion F. Colvin all of our stock of groceries, queensware, hardware, stone, harness, plants and machinery of all kinds and all notes and accounts and notes and horse and delivery wagon and horse at Colvin in the store room corner of Commerce and First streets in Glasgow, provided, however, if any other creditors to whom we may owe for machinery, agricultural machines, plows or buggies, wagons and harness are willing to take back such goods at a fair price, then said Thomas Shackelford and M. FColvin shall pay such debts by transfer of such property at such price as shall be agreed upon not less than cost and carriage. The said Thomas Shackelford and Marion F. Colvin to have control and possession of said goods and all of our accounts and notes from this date to sell on their own account and collect for their own use. H. E. Shackelford,
“Cordell Colvin.”
*486Thomas Shackelford was the uncle of Henry E. Shackelford and Marion F. Colvin was the father of Cordell Colvin and, as appears from the instrument, copied, both were sureties on obligations of the partnership. Henry E. Shackelford was indebted personally on a promissory note of $1,000, held by •his mother-in-law, of which plaintiff became the owner and holder before the commencement of this action. After describing the note, the petition alleges “and in the purchase price of the interest of H. E. Shackelford in the said stock of goods and business and accounts of the said firm of Colvin & Shackelford, the defendant, Thomas Shackelford, assumed and promised to pay the note above described, given by the said H. E. Shackelford to Margaret Stops, and afterwards assigned to this plaintiff and now owned by this plaintiff; that the interest of the said H. E. Shackelford in the stock of the said goods, wares and merchandise and the accounts due his said firm was all of the property then owned by the said II. E. Shackelford; that at the date, to-wit, the 3d day of December, 1895, his whole interest therein was turned over to the defendant herein, at the time that defendant assumed to pay the said note; that the defendant received the interest of the said H. E. Shackelford, in the said goods, wares and merchandise and accounts due the said firm, and appropriated the same to his own use.'’
NO mention of this indebtedness or of the alleged agreement to assume its payment appears in the bill of sale, but it is contended by plaintiff that at the time of the execution of that instrument, Thomas Shackelford orally promised his nephew to pay the debt, and this promise is made the foundation of the cause of action pleaded in the petition.
It appears from the evidence that at the time of the transfer all .of the parties concerned thought the property conveyed exceeded in value the amount of the *487partnership debts and that Henry E. Shackelford, as a partner, had an interest in the property of some value, but, as is quite common in such cases, this estimate fell wide of the mark, and the subsequent liquidation of the assets developed that they were insufficient to pay the partnership debts, and, therefore, that neither- partner had an individual interest in them of any value. A witness testified that being interested as a creditor of the firm as well as a creditor of Henry E. Shackelford, he was present at the time of the transfer, and inquired about the .provision made for his protection. He testified in part: “I told Henry Shackelford I didn’t want him to sign the transfer papers and leave me out. Thomas Shackelford was called, and he said, H will see that paid,’ that is the account which the firm owed me and the individual account against 'Henry, both of them. Henry Shackelford then said to Thomas Shackelford, ‘What about Mrs. Stops (Henry’s mother-in-law) ?’ ’ Thomas Shackelford said, ‘That will be protected.’ When Thomas Shackelford said that, Henry Shackelford did not say anything, he just went and signed the contract.” Henry E. Shackelford testified: “We were talking the matter over and I said: ‘Uncle Tom, what about the note of Mrs. Stops, what about this note of Mrs. Stops,’ and he said to me that should be protected as there was plenty here.” “Q. He was going to protect it? A. That is what he said. He said there was plenty here to pay the note and it would be paid. ... I don’t remember what was said in the presence of John H. Turner by Thomas Shackelford. I think he said that the note would be protected. Something was said at the desk — I can’t say exactly what it was. Thomas Shackelford said nothing else. About two years after that I was in the store and Thomas Shackelford said: ‘Henry, I do not believe there is going to be enough of goods to pay that note,’ and I said, ‘You are a long time finding it out.’” On *488cross-examination, the witness said: “When I was talking to Thomas Shackelford I said that if the note was not paid out of the property of Shackelford & Colvin that I would pay it myself if I got able; yes, sir,. I said it.”
This testimony states the substance of all the evidence offered in support of the allegation that defendant personally assumed the payment of the note, and we think it too weak to raise an issue of fact. Defendant did not promise unconditionally to pay the debt. In saying that the debt would be protected and that “there is plenty here to pay the note,” he clearly expressed no-other purpose than to pay the debt out of the surplus-proceeds of the assets after the payment of the partnership debts. No such proceeds were realized and it is not shown that the property was wasted or misappropriated. It merely failed to pay out.
The judgment is affirmed.
All concur.