26 Gratt. 455 | Va. | 1875
delivered the opinion of the court.
The principal questions involved in the case are,
The note in question was made by B. Ashby & Sons; was dated the 19th day of April 1862; was payable twelve months after date to Colin C. Porter, and was for the sum of $7,723.24. The origin of the note was as follows:
B. Ashby & Sons at that time resided and were engaged as partners in the manufacture of flour in the county of Clarke. They were indebted before the war in various notes to the Farmers Bank of Virginia at Winchester, which were renewed from time to time, and afterwards consolidated into one note. This note was discounted on the 30th of January 1862, was payable at said bank sixty days after date, and was due March 31st and April 3d, 1862, when it was protested for non-payment. On the 7th of March 1862 the bank removed from Winchester toFarmville, and there continued open and doing business till the close of the war. Ashby & Sons were anxious to take up their note, thus being under protest at the bank in Farm-ville, but not finding it convenient to do so, or to go to Farmville for that purpose, they made an arrangement with Porter to take it up for them. He was at that time a resident of the adjacent county of Jeffer
First. I am of opinion that the debt due by Buckner Ashby & Sons to the Farmers Bank of Virginia at Winchester, which was paid by Colin C. Porter for said Ashby & Sons in April 1862, after the removal of said bank from Winchester to Farmville, during, and in consequence of the war, was, at the time of such payment, a specie or good money debt. It was due by a note dated the .30th day of January 1862, payable sixty days after date, for §7,700, and discounted on the day of its date by said bank for said firm. It was made and discounted as a renewal of notes before made and discounted at the said bank, which notes were in their origin ante-war debts, and of course payable in specie or good money, and the presumption in the absence of any evidence to the contrary is, that the said note, made in continuation of the same loan and accommodation, was intended to be payable in the same currency.
The said note, being at the time of its payment a good money debt, it would have been competent for the bank, the holder of the note, instead of receiving payment in Confederate money at par, to . have demanded payment in good money. And it would have been competent for the bank, instead of receiving payment of the note in Confederate money from the debtor, to have sold and assigned it to Porter or any
Secondly. I am of opinion that Porter did not become the assignee of the note by paying the amount of it to the bank. There was no privity of contract between him and the bank in regard to the note. Its payment by him had the same effect in regard to the bank, and in regard to the continued existence of the note, as its payment by Ashby & Sons would have had. It was in effect paid by them, so far as the bank was concerned. So that Porter could not have maintained an action at all upon the note, either in his own name or in that of the hank, much less could he have recovered in such an action the amount of the note in good money. In the absence of any express contract between him and Ashby & Sons, his only right of action against them, arising from such payment, was an action of indebitatus assumpsit for so much money paid to their use, and the measure of his right of recovery in such action would have been the precise amount so p$id. Having paid the par amount of the note in Confederate money, he would have been entitled to recover the value of such amount, at the time of such payment, with interest thereon from that time.
Thirdly. I am of opinion that the circumstances under which the payment was made by Porter, for Ashby & Sons, did not render the latter liable to him for any greater amount than they would have been liable for had the payment been made at their mere request. There was certainly no express promise by
But while such was probably the expectation of Porter, the circumstances of the case do not warrant us in saying that such was the expectation or intention of Ashby & Sons, or that they intended to make any other contract than that which was implied in the payment of the money by him for their use and at their request. They may well have supposed that Porter, having perhaps more Confederate money than he needed, might have been willing to accommodate them by taking up
Fourthly. I am of opinion that the execution of the note by B. Ashby & Sons to C. C. Porter for $7,728.24, with interest from date, dated' the 19th day of April 1862, payable twelve months after date; the said principal sum being the amount paid on the day of its date by the said Porter to the bank in discharge of a debt due to it by said Ashby & Sons, makes no difference in regard to the extent and amount of the liability of said Ashby & Sons to said Porter; and that the debt due by the former to the latter is to be scaled as of the 19th day of April 1862, precisely as if the said new note had not been executed. That note was not an ex-tinguishment of the preexisting liability of Ashby &
This objection seems not to be at all relied on, and little or no notice was taken of it in the argument. At all events it is wholly unsustainable. The liability of partners for a partnership debt is joint and several, even after the death of one or more of the partners* This has been the case, even at law, ever since the enactment of the Code of 1849, chapter 144, section 13, which provided that “the representative of one bound with another, either jointly or as a partner, by judgment, bond, note or otherwise, for the payment of a debt, or the performance or forbearance of an act, or for any other thing, and dying in the lifetime of the latter, may be charged in the same manner as such representative might have been charged, if those bound jointly or as partners had been bound severally as well as jointly, otherwise than as partners.” See the note of the revisors to this section in their report, page 724. The/amendment of the law was made after the decision of the case of Morris’s adm’or v. Morris’s adm’or &c., 4 Gratt. 293, in which there was much conflict of opinion among the judges. Had the case occurred after, and been governed by the amended law, it is presumed there would have been no such conflict. For all the judges in that case concurred in holding, that “two partners having given their joint and several bond to a creditor of the firm, for a partnership
I am of opinion that there is no error in the decree complained of to the prejudice of the appellants, and
1 am therefore for affirming it.
Decree aeeirmed.