Patterson v. Boulton — 14 N.Y. St. Rep. 91

Majority

p. 91

George G. Patterson v. George E. Boulton.

(Supreme Court, General Term, Fifth Department,

Filed January, 1888.)

Headnote

Belease—Construction of.

By the articles of dissolution of a partnership between the parties to this action it was agreed that the plaintiff should convey all his interest in the real property, stock, materials on hand, and other articles of personal property specifically mentioned in the agreement to the defendant, who, in consideration of this sale and transfer agreed to pay the liability of the firm then to a creditor of the firm. This sale did not include the debts due and owing the company, and it was stipulated that they should be collected and the proceeds appropriated to paying the firm liabilities other than the one of which payment was assumed by the defendant By a second agreement entered into between the parties the plaintiff in consideration of certain matters therein set forth released the defendant from all claims which he might have against him by reason of the partnership relations which formerly existed between them, but made no specific mention of the obligation assumed by the defendant under the previous contract. Feld, that the defendant was not released from this liability and that the plaintiff having been compelled to pay the amount of that claim might recover of the defendant.

Motion by defendant for a new trial founded on a case and exceptions ordered by the trial court to be heard here in the first instance. The contract referred to in the opinion as the second contract was in writing and dated September 16th, 1876, in which the plaintiff was mentioned as party of the first part and the defendant as party of the second part, and the agreement was in these words: “In consideration of the agreements and covenants hereinafter contained, the

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party of the first part hereby releases and discharges the party of the second part, of and from all claims and liability which the party of the first part has or may have against him by reason of their business relations as members of the firm doing business under the name of the Nunda Brewery Company, which firm was dissolved on the 22d day of March, 1875, and particularly for all claims for excess of capital furnished, materials put in the business, or accounts collected, or moneys received of the party of the second-part. . 1

“In consideration of the premises the party of the second part hereby sells, assigns, transfers and sets over to the party of the first part all his interest in the accounts, notes and demands which are now due or owing to the parties hereto, as the members of the firm of the Nunda Brewery Company which existed on the 22d day of March, 1875.”

A judgment was ordered by the court in favor of the plaintiff for the sum of $1,689.54 to which the defendant excepted.

E. Q. Olney, for the pl’ff; E. W. Packard, for the def’t.

The parties were co-partners doing business as brewers under the firm name of “The Nunda Brewery Company,” and on the 22d day of March, 1887, by an agreement in writing they dissolved the co-partnership. At that time, they were the owners, as co-partners, of real estate, personal property, bills receivable, and were indebted to others, and among them one Gould, in the sum of $6,818. It was agreed in the articles of dissolution, that the plaintiff should convey all his interest in the real estate, the stock and materials on hand and other articles of personal property specifically mentioned in the agreement, to the defendant, and in consideration of such sale and transfer the defendant agreed to pay the liabilities of the firm then due and owing to Gould, stating the amount to be $6,818. The sale did not embrace the debts due and owing to the company and there was a stipulation that they should be collected and the proceeds appropriated to paying their outstanding liabilities other than the debt due Gould. There was a further stipulation, that if, on the collection of all the debts and the application of the proceeds to the payment of the co-partnership debts excluding the debt due Gould the surplus, if any, should be equally divided between the parties.

There was a special promise on the part of the defendant,, .that he would pay the debt due Gould and save the plaintiff harmless, from the payment of the same or any part thereof. The defendant did not pay the Gould debt in full. and suit was brought thereon against the parties, and a

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judgment recovered and the plaintiff was compelled to pay thereon the sum for which the judgment was ordered in this action.

The only defense interposed is, that by the terms of the second agreement, the defendant was released from his covenant contained in the first agreement, to pay and discharge the indebtedness to Gould.

We are unable to discover any intention, to alter or change the terms of the first agreement, by which the plaintiff conveyed all his interest in the real estate and the personal property connected with the business to the defendant or to release him from his promise to pay the Gould debt. The second agreement makes no reference to the special promise of the defendant to pay that debt or to cancel the plaintiff’s agreement, to convey the real estate and personal property to the defendant. After the execution of the first agreement'there were unsettled matters connected with the business which entitled either party to an accounting, and it is obvious that the object and purpose of the second agreement was to completely wind up and terminate as between themselves, all unsettled matters connected with the co-partnership, and that the defendant released his interest in the notes, accounts and demands due and owing to the firm.

It does not appear, at the time the last agreement was made, that there were any debts or demands owing by the firm except so much as remained unpaid to Mr. Gould.

We think the direction of the trial judge was proper, and the motion for a new trial should be denied with costs, and judgment ordered for the plaintiff upon the verdict.

All concur.