Odell v. Brown

18 Ind. 288 | Ind. | 1862

Perkins, J.

Lazarus M. Brown .and George H. Weaver were partners in the mercantile business in the city of Lafayette, Indiana; and about the first of January, 1857, they dissólved that partnership, Brown selling out to Weaver, who took the assets, and was to pay all the debts, including one of near 3,000 dollars to Brown, the retiring partner.

Eayly in the following spring, Weaver formed a partnership with Jerome B. Odell, to be carried on in Kansas, Weaver putting in as his portion of the capital stock, the goods he had on hand as successor to the firm of Weaver § Brown. Subsequently to these transactions, and when about to start for Kansas, Weaver executed a bond to Brown, with Odell as surety, conditioned for the performance of the contract he made with Brown at the dissolution of their partnership, viz: that he would pay the debts of the firm, &c. This bond was executed on the 14th of April, 1857, three and a half months after the contract was made, the performance of which it was designed to secure, and to which contract Odell was not a party. Weaver failed to pay the debts, and Brown sustained a loss. Weaver is insolvent. Odell is dead, and the pending suit is by Brown against Odell’s administrator on the bond above mentioned.

The suit is defended on the ground of want of consideration for the bond, as to Odell. The jury found the facts specially, and a general verdict for the defendant, but the Court below gave judgment for the plaintiff on the special finding, non obstante, the general verdict. The simple previous obligation of Weaver to Brown was no consideration for the bond in question as against Odell. It was a past consideration. See Boston v. Dodge, 1 Blackf. by P. & D. p. 18, and notes; Will, on Per. Prop, side page 68, note; Chit. Cont. 52, and note. Brown had no lien on the goods by virtue of his late partnership with Weaver; Dunham et al. v. Hanna et al., at this term; therefore, the fact of releasing the goods from a lien did not exist as a consideration, at least, so far as it is shown by the record.

But another state of facts may have existed. Weaver had agreed with Brown to pay given debts, among them a large one to Brown himself. Those debts may have been, and it is inferable they were, due; Weaver was about leaving the State taking with him the property with which those debts might, and, morally, perhaps, should be paid. Odell was interested in his leaving and taking with him the property. Brown could doubtless have arrested his departure and tied up the property by legal process; and to prevent this, Weaver and Odell may have executed the bond in question. If it was executed under such, circumstances, it was upon a valuable consideration as to both obligors. The jury might fairly have inferred such a consideration for the bond, and, as a consequence, held Odell liable; but they did not, and we do not think a case was presented where the Court had a right to infer it in opposition to the finding of the jury.

Z. Baird, H. W. Chase and J. A. Wilstaeh, for the appellant. John A. Stein, for the appellee. Per Curiam.

The judgment is reversed with costs. Cause remanded for another trial.