| Ala. | Jun 15, 1855
We concede that, if the instrument on which the appellee’s claim was based had been one of indemnity merely, he could have recovered nothing, unless he had proved actual loss or damage; but, on looking to the obligation, it shows that Peacey and Ward had been partners, — that the firm was dissolved, the former kept the goods, and the debts due the firm, and Ward gave him his note for one-half the losses ; and for these considerations Peacey was to become “ solely responsible for all the debts contracted for, and remaining unpaid against, said firm.” This was, in effect, a stipulation to discharge Ward from all responsibility for the partnership debts : and Peacey, under this obligation, was bound to do this, certainly within a reasonable time. Failing to comply with his engagement, he would have been liable, if he had lived, to an action at the suit of Ward, in which the measure of damages would have been the amount of the responsibility of Ward upon the partnership debts from which Pea-cey had failed to discharge him. — Lathrop v. Atwood, 21 Conn. 117" date_filed="1851-06-15" court="Conn." case_name="Lathrop v. Atwood">21 Conn. 117; Gilbert v. Wiman, 1 Coms. 550; Hogan v. Calvert, 21 Ala. 194" date_filed="1852-06-15" court="Ala." case_name="Hogan's Ex'r v. Calvert">21 Ala. 194. As Peacey would have been liable to Waird, for this sum, at law, if living, his estate would be chargeable with it after his death ; and all the evidence that was required to support the claim against the estate, was the obligation, and proof of the fact that Peacey had not discharged Ward from liability for the partnership debts. This last fact, as appears from the record, was established by testimony showing the existence of those debts; and the claim was, therefore, properly allowed for the amount of them.
Whether the specific debts, the failure to discharge which constituted the foundation of Ward’s claims, could be allowed by the Probate Court against the estate of Peacey, in favor of the holders, is a question which the record does not present, and which it is unnecessary to discuss.
Judgment affirmed.