10 Ala. 209 | Ala. | 1846
From the frame ef the plea, we infer that the contract between the plaintiff'and Strange, was made previous to the time when the former became the proprietor of the note. This being the case, the substitution of the plaintiff for Strange, as a partner with the defendants, and the undertaking to pay the proportion of the latter, in all the partnership debts, did not ipso fado extinguish the note — It had no effect whatever upon its continuing vitality. But if the plaintiff had been the holder of it at the time he was initiated into the concern, we cannot very well perceive that the case would have been different.
We do not understand the plea to insist that any thing like a technical release was executed by the plaintiff to Strange. The form of pleading does not warrant such an inference— in fact there could have been no release, either in respect to the note or other demands against the firm, unless the plaintiff himself had been the creditor. It is an inappropriate use of language, then, to say that the plaintiff released and absolved Strange from the payment of his engagements as a partner.
The case, when denuded, is this, the plaintiff purchases the interest of a partner in a mercantile concern, becomes' a member of it, undertakes to pay all the liabilities of that partner as such, and to occupy his situation in respect to the partnership ; afterwards he acquires a note made by the firm previous to his initiation. Is it competent for him to maintain an action against any one of the makers, in virtue of the in-dorsement to him, unless it be the partner to whose place he has been substituted.
It is a clear principle, that courts of law will not entertain suits for the recovery of money due by one partner to another by simple contract, on the partnership account, because it would be useless for one partner to recover, what, upon taking
There is nothing ill the contract between the plaintiff and Strange, which could prevent the former from purchasing a note against the partnership, and upon being invested with the legal title to it, maintain an action thereon. The other members of .the concern cannot avail themselves of that contract to defeat a recovery ; especially as it is allowable by statute to sue all or any of the makers or obligors of a joint and several note or bond. If the plaintiff saves Strange harmless from the debts of the firm, this is all his undertaking requires him to do; and whether he does this or not, the other partners are not interested to inquire, unless they are chargeable in consequence'of his default.
If in acquiring the note, the plaintiff had intended to pay
The judgment of the circuit court is reversed and the cause remanded.