#### HENRY JARMAN v. JOSEPH J. ELLIS et al.

Where the members of a firm gave a bond, individually, for a debt of the firm, and property was delivered by them and accepted as a payment thereof, it was Held that the bond was thereby discharged, and that It was not in the power of one of the obligors, by agreement with the obligee, to withdraw the- payment, and! thus again put the bond in force.

This was an action of debt on a bond, tried before Saunders, J., at the last Fall Term of Onslow Superior Court.

The plaintiff offered in evidence the following bond:

“ One day after date, we promise to pay Henry Jarman or' order, the sum of three hundred dollars, for value received. Witness our hands and seals. January 19th,. 1855.”

(Signed,) J.. J. Ellis, ■ [seal,]

G. J. Ward, [seal.]

David Marshall, [seal.]

Defendants then offered evidence that they were partners, and that the bond was executed for a partnership debt, to wit, for the hire of negroes during the year 1854.

Defendants then offered one Koonee, who testified, that about the middle or last of January, 1855, these defendants sold to the plaintiff two mules, for what price he did not recollect, but it was agreed by the parties that the mules were to go towards the payment of the bond of $300. He, witness, thought the mules worth $250 or $300.

In reply, plaintiff showed in evidence a credit on the note of $50, of date 23d of January, 1855. They further showed the following receipt, signed by J. J. Ellis, one of the defendants :

“■Received, February 1st, 1855, of Henry Jarman, two hundred and forty dollars in full for two mules, one black and one bay.” .

(Signed,) J. J. Ellis.

It was contended by the plaintiff, that the subsequent receipt of $240 by one of the defendants, who was one of the partners, was a waiver of the former agreement at the time of the sale of the mules, and was an admission by the firm of a payment for the mules to that amount, and that he was en*78titled to recover the balance of the note after deducting the $50, which had been credited.

The Court charged the jury that the agreement, as testified to by Koonce, of the parties at the time of the sale of the mules, was that they were to go towards the payment of the bond to their full value, and that the subsequent receipt of $240 for the mules, would not set aside this agreement, as this receipt was by one of the members of the firm ; but defendants were entitled to a credit as a payment to the value of the mules. Plaintiff' excepted to this charge.

Verdict for plaintiff, deducting the value of the mules as a payment of $290. Judgment and appeal by plaintiff.

McRae, for the plaintiff.

Green, for the defendants.

Pearson, C. J.

From the case as stated by his Honor, we are unable see whether the dealing, in respect to the mules, was an executory contract to sell, or an executed contract of sale, whereby the mules were delivered and accepted in payment fro tanto of the bond sued on. This distinction is illustrated in Rhodes v. Chesson, Busbee’s Rep. 336. If the mules were delivered on a contract of sale, the bond was satisfied fro tanto, and being defunct, it was not in the power of one of the members of the firm to bring it into force again as a bond of the individual obligors — for although it was executed as a security for a debt of the firm, still it did not stand as a mere open debt of the firm, or a charge of an amount on one side, subject to a discharge by the entry of a credit on the other, which was under the control and direction of a member of the firm, so as to give him the right to revoke or countermand the order first made for its application ; but it was the deed of the individuals who composed the firm, by which they were bound in a manner higher than either member had authority to bind the others, in respect to matters growing out of the business of the firm; consequently, if this deed was once discharged, it was not in the power of one of the mem*79bers of the firm to give it, a second time, force and effect as a deed of the individual obligors, although it may be, he would have had authority, as a member of the firm, to change the original application of the price of the mules, so as to revive a simple contract debt of the firm for the hire of the slaves, if the bond sued on had not been executed. Where no error appears on the face of the record, the judgment must be affirmed.

Per Curiam,

Judgment affirmed.