DANIEL SHAVER vs. PETER ADAMS & AL.
Where a partnership was about to be formed, and one, who was to be a member, purchased a chattel, which was afterwards used by the firm, and agreed by them to be taken from him, upon his retiring from the business, and the note he gave for the chattel was, in consequence of this agreement, surrended to him : Held, that tlie other partners were bound to pay tile original vendor.
The case of Cooper v. Chambers, 4 Dev. 261, cited and approved.
Appeal from the Superior Court of Law of Rowan County, at the Spring Term 184S, his Honor Judge Manly presiding.
The case is as follows: The defendant and one BeucLni entered into a partnership, to run a line of Stages between the City of Raleigh and Salisbury. Afterwards, and before the company commenced operations, Bencini purchased, for the use of the firm, from the plaintiff, a carryall wagon at the price of $100 — for which he gave his note. This carryall was subsequently put by Bencini into the stock, at the price he was to give, and it was used by the firm a short time throafter. Bencini, becoming embarrassed in his circumstances, sold out his stock to the other partners, the defendants. In the settlement of their accounts, he told the defendants, he was not entitled to any credit on account of the carryall, as he had not paid for it, and it had been purchased for the firm, and devoted to their use, and it might be considered the common stock. To this the defendants assented, and the wagon was accordingly taken by them,and was worn out iu their service. The agent of the plaintiff afterwards presented the note to McLean, one of the partners, and de*14manded payment, who answered that it must and should be paid, and subsequently he declared to the agent of the plaintiff the amount was due, and should be paid. The note was subsequently surrendered up to Bencini.
On behalf of the defendants it was argued, that the promise of the defendants was a promise to pay the debt of another, and, not being in writing, was void under the statute against frauds, Rev. St.at. Ch. 50, and, at all events, the other partner, Adams, was not bound. Under the charge of his honor, the jury returned a verdict for the plaintiff, and the defendants appealed.
Ellis, for the plaintiff.
No counsel for the defendants.
Nash, J.
We do not consider the plaintiff’s case as coming within the operation of the statute of frauds. The 10th section of that act declares void all promises made to pay the debts of another, when the party to be bound does not enter into some writing or memorandum, signed by him or his agent. If, therefore, we believed, that the promise, made by the defendant, McLean, was to pay the debt of another without any new consideration for it, we should not hesitate to reverse the judgment given below. We do not so consider it, but look upon it as a new original contract growing out of the one made by Bencini. The action is not upon the note given by Bencini ; that was surrendered up to him upon the promise made by McLean to pay for the wagon, and he, Bencini, was consequently discharged from all liability on it. Without inquiring whether the defendants would not be liable under the first contract, as joint partners with Bencini in the purchases with him, our opinion is founded on the agreement, made by the parties to take the wagon and pay the plaintiffs for it. Bencini was a copartner with the defendant in the line of Stages, running between Raleigh and *15Salisbury, and purchased the wagon for the use of the firm. It was by them received and used, and, when the partnership was dissolved and Bencini left it, we gather from the case that the defendants were about to credit him with the value of the wagon. Upon being informed by him, that it was not paid for, but that the plaintiff had his note for it, they agreed to keep the wagon and to pay the plaintiff for it. The contract, on which the action is brought, is an original contract between the parties, upon a sufficient consideration in law, 1 William’s Saunders 211 note 2, Cooper v. Chambers, 4 Dev. Rep. 261. The 2nd ground of defence cannot be maintained. The prom« ise of one partner to pay a debt due by the firm, binds all the partners. Adams was present, when the parties agreed to receive the wagon, as partnership property, and to pa}r the plaintiff for it.
Per Curiam.
Judgment affirmed.