dissenting.
(Buchanan, J., concurring in the dissenting opinion.)On the 17th January, 1847, plaintiff sold to defendant all his interest in the assets of their partnership for the price of $9000, $2500 of which were paid in cash, and the residue was made payable on terms of credit. The defendant also assumed all the liabilities of the firm, which existed at its dissolution, to take place on the 14th of March following. Subsequently, on the 13th December, 1848, the parties signed another instrument, in which, after setting forth the previous agreement, it recites: “ and whereas, said Lonsdale has not performed said agreement, but said Gray has paid or become bound to pay the following sums, to-wit: to H. Ames & Co. (by compromise) $235 40 ; Curtis & Pyrena Wood's draft, $991 09 ; W. P. Holloway & Co., draft for H. Parish, for $1270 54; Stank, Day, Stauffer & Co., account of $294 31; fee bills, costs, &c., in a suit of Swigert v. Lonsdale & Gray, $57 82; also $238 50, lost and paid by having to discount Thomas Brown's draft to secure prompt payment of the balance ; and whereas said Gray has been sued by Blame & Tompkins, upon a claim against Lonsdale & Gray for $1496 36 : Now, if the said Lonsdale shall well and truly pay the said Gray, the said sums of money which the said Gray has paid, and assumed to pay, with interest and costs that may accrue thereon, as above specified, on account of the firm of Lonsdale & Gray, within twelvemonths from the date hereof, and shall also pay and satisfy, from time to time, as the same may arise and be established, all claims and demands that may hereafter appear against said firm of Lonsdale S Gray, and save said Gray harmless therefrom ; then, said Gray, in consideration that the creditors of said Lonsdale have agreed to accept from him twenty per cen-tum upon his individual debts, and grant him indulgence for the payment thereof, binds h’imself to surrender and give up to said Lonsdale, said acceptances, amounting to $6500, and receive in lieu thereof, his four notes for twenty per centum upon the amount of said claim of $6500, payable, &c.” This sum of $6500 foi’med part of the price of the assets, payable by defendant, on terms of credit. The following receipts are endorsed on the last mentioned agreement, viz:
“ Received, New Orleans, February 11th, 1850, from Henry T. Lonsdale, five hundred and eighty seven dollars 53-100 — being for H. Ames& Go's debt, $235 40, for fee bill $57 82, and Stark, Day, Stauffeo• & Go., $294 31.
“GEO. E. H. GRAY.”
“ This obligation is this day satisfied by money, and notes, and obligations, which, if paid, will be in full of the within.
“ New Orleans, May 1st, 1851.
“ GEO. E. H. GRAY.”
In the year 1846 the firm of MeKee & Swigert filed a bill in the Louisville Chancery Court, against B. A. Overton and others, on which certain bagging, rope and hemp, were attached and replevied by Lonsdale & Gray, on 9th day of October, 1846, on giving bond and security. MeKee & Swigert then filed an amended bill, making Lonsdale S Gray defendants in the suit, in which David L. Sayre intervened and claimed the ownership of the property. On the *75121stMay, 1852, the court decreed that Sayre recover of Lonsdale & Gray, the sum of $7l3, and his costs expended on the cross bill. An execution was issued on this judgment, and satisfied on the 12th September, 1852, by the plaintiff, Gray, the principal,i interest and cost of which amount to the sum of $768 11.
The plaintiff sues for the recovery of this amount. The defendant, in his answer, admits the contract of the 17th February, 1847, but says that it was novated by the one of the 13th December, 1848. After setting forth the receipts thereon endorsed, he avers “ that the notes and obligations referred to in said endorsment were duly paid to said Gray, or if not paid that said Gray had not used due and legal dilligence to collect the same; that the firm of Lonsdale & Gray were never indebted to David L. Sayre-, that the judgment in the petition referred to and set forth, is not in any manner binding upon the defendant; that at the time the said cross bill and demand of the said Sayre was filed, to-wit, in February, 1848, defendant and said Gray had ceased to be partners, their partnership having been previously dissolved ; that the defendant never signed the replevin bond mentioned in this petition; and that this defendant was never cited to answer the cross bill filed by said Sayre, and never authorized any one to appear and answer said cross bill for him, &c.”
It is obvious that this answer is repugnant to the inference sought to be drawn from the plaintiff’s receipts, which were evidently intended to apply only to the debts specified in the contract of the 13th December, 1848. The receipt of the 1st May, 1851, clearly refers to the one given only two days before, as follows :
“Received, New Orleans, 29th April, 1851, from H. T. Lonsdale, eighteen hundred and twenty-one 36-100 dollars in cash, his note at one year after date, for one thousand and thirty-three 90-100 dollars, and an obligation to ,pay Eolloioay's draft in favor of R. Parish, £or $1270 54-100, which when paid, will be in full of all claims to date, and all demands.
GEO. E. H. GRAY”
It is evident that this receipt was intended to apply only to the debts of the partnership, for which the plaintiff had then become liable. This is made more apparent, from the fact that both amounts nearly correspond. The receipt of the 1st May, 1851, must be construed as applicable to the extinguishment of the obligation contracted by the defendant, to pay the plaintiff twenty per centum on the sum of $6500, the price due by him on the sale of the assets of the partnership.
Indeed this may be considered as the only stipulation contained in the agreement of 1848, i. e., to discharge Lonsdale from the payment of the whole amount of the $6500 ; the other matters contained in the contract, as recitals, and inducement, were clearly not intended to affect the previous obligations contracted by the defendant to pay all the debts or liabilities of the partnership. It is true, the stipulation of the defendant is reitevated, that “ he shall pay and satisfy from time to time, as the same may arise and be established, all claims and demands that may hereafter appear against said firm of Lonsdale & Gray, and save said Gray harmless therefrom; ” but it is clear that this added nothing to his former obligations, nor did it operate any change in them. The reiterated promise to perform them, as he was already bound to do, certainly did not create any new obligations. Hence it'is clear that the defendant must be held liable to the plaintiff for the amount of the Sayre claim, unless it *752be shown that he has paid the same either to the creditor or to the plaintiff. How can it be said that he has done so, when he denies expressly that any such obligation or debt ever existed against the partnership ? Such denial must necessarily repel any inference that the Sayre claim was included in the alleged settlement between the parties. Indeed, how could it be said to be included in their settlement, when it was not then established? The liability of the firm of Lonsdale & Gray, for the claim of Sayre, is denied by the defendant, as we have seen; but, under the agreement of 1848,.it is clear that the defendant acknowledges the pendency of the suit by his assumpsit to reimburse to the plaintiff the sum of $57 82, stated to be “for fee bills, costs, &c., in a •suit of Swigert v. Lonsdale & Gray.”
I, therefore, think that the judgment ought to be reversed.