Lewis, Pl'ff in Error, vs. Woolfolk, Def't in Error

Lewis, Pl’ff in Error, vs. Woolfolk, Def’t in Error. A broach assigned on a bond, the condition of which is to idem-nify and save harmless an obligor, from all debts due from the obli-gor to the obligee, is not well assigned, unless it be stated that th© particular debt, on which the obligee in the bond was sued, was a subsisting debt against obligor and in favor of obligee, and embraced within the purview and provisions ’of the 'bond. The admission in evidence of a Justice’s docket; to prove matters . which are inadmissible under the issue formed between the parties, is inadmissible if objected to, and if admitted, will vitiate the verdict found through the influence of such evidence. Error to the late District Court for the County of Grant. This was an action of debt brought in Grant Co., in the late District Court, by the defendant in error, against the plaintiff in error, on a bond, the recital preceding the condition of which, and the condition thereof, 'was as follows, to wit: “ The condition of this obligation is such that, whereas, in consideration of the said Wool-folk withdrawing a certain suit in Chancery, commenced by said Woolfolk, against said Lewis, and one Julius Augustine, and for the further consideration of five hundred dollars, to said Lewis paid, the said Lewis hath agreed to pay all the partnership debts, due from the late firm of Lewis & W oolfolk, doing business at Potosí, in Grant County aforesaid, and indemnify and save harmless the said John A. Woolfolk from the payment of said debts, and from all costs, suits,' actions, and trouble he might thereby incur. And, whereas, it having been agreed by said Lewis and Woolfolk, that they would pass to each other their reciprocal releases; in consideration thereof, the said Lewis, both for himself and the said Julius Augustine, hath remised, released, and forever quit-claimed, and doth hereby remise, release, and forever quit-claim unto the said John A. Woolfolk, his heirs, &c., all actions, causes of action, suits, debts, dues, sum and sums of money, accounts, reckonings, bonds, specialities, covenants, contracts, variances, damages, executions, claims and demands whatsoever, (except as excepted in the reciprocal bond and release of said John A. Woolfolk. bearing even date herewith,) both at law and equity, which, against the said John A. Woolfolk, the said Lewis or Augustine, now hath, or ever had, on account of their mutual dealings, or on any other account whatsoever, from the beginning of the world to this day. And the said Lewis intends this release, although only recited, to be as full and effectual as if it had been more expressly and formally drawn up and executed. Now, if the said Lewis, for himself and said Augustine, shall well and truly pay all said partnership debts, and save harmless the said John A. Woolfolk from all payments thereof and all costs, trouble and expenses he may incur thereby, and shall also pay all thé legal costs of Court, incurred in the chancery suit aforesaid, by said Woolfolk. and also, if the said Lewis, for himself and said Augustine, shall, in all things, well and truly obserye and keep, in spirit and letter, the release above recited, and the requisitions thereof, and perform all the duties thereby arising, then this obligation shall be void.” The defendant below pleaded a full performance; the plaintiff put in a replication, assigning breaches of the bond declared upon. The first breach assigned was, that after the execution of the bond, Lewis sued Woolfolk for a cause of action, which accrued before the release was given; and caused him to be arrested on a capias, issued by Coyle, a Justice, on the ground of his being about to depart the State; by which he was put to trouble, expense,- &c. The remaining six breaches were substantially alike, and alleged that Lewis did not pay all the debts due from the co-partnership, and save Woolfolk harmless from the payment of debts, costs, &c. The defendant demurred to the replication generally, and the plaintiff joined in demurrer; the Court over-ruled the demurrer. After which the defendant rejoined to the replication, tendering an issue to the country on the first breach assigned; and to the other breaches, setting up that the co-partnership demands, on which Woolfolk brought suits, were taken by him on a division of partnership property and effects, and subject to all the deductions therefrom, by way of' set-off, or otherwise, on the,part of the debtors at the time of such division. This rejoinder con~, eluded with a verification. The plaintiff surrejoined,.; alleging that the notes, ac-. counts, &c., mentioned in the assignment of breaches, were assigned by Lewig to Wooifolk,v as just debts still due, and owing from debtore- to the firm of Lewis &. Woolfolk, and tendering an issue to the. country. On the trial of the cause, the counsel-for the defendant took various exceptions to the ruling, of the, presiding'. Judge. The defendant’s counsel also, on the. trial, re-, quested the Judge to charge the jury in a. particular manner: — t 1st. That, unless.the .jury should find* that the defendant assigned the demands mentioned-in the plaintiff’s replication, and- by such assignment, guaranteed- that the-amount specifiod in such demands were,actually due, the, jury should find for the defendant. 2d. That, unless .it- appeared- that the-.demands afore-,, said, transferred to the plaintiff, arose from an indebted-. ness contracted with the firm.of-LewisWoolfolk; and the- off-sets to such demands, were chargeable.against said firm, that then the jury should find for the defendant. 3d. That, as respects the assigned demands, against-which there were off-sets, arising in the manner aforesaid, the plaintiff could only recover against the defend-, ant, such amounts, as should be recovered by the debtors-of the firm, against the firm- itself, by proving such off-, sets to-exceed the sums due from them to the firm; and that it appeared in-proof that in all such instances, the defendant had paid such excess and the costs. The Judge, however, refused to charge as requested.. On the trial, the plaintiff offered in evidence, the docket of P. Coy-le, a Justice; and. the Justice was.also sworn, and who. testified as.to the suits commenced before him, on the notes and accounts taken on the division, by Wool-, folk. This testimony was objected to,, but admitted by the-J,udge;. and an exception was taken thereunto. The. Jury assessed the damages off the plaintiff at #260., Cole and Biddlecombe% for plaintiff ip error, argued that the Justice, who was, sworn on the trial, gave evidence, of immaterial* irrelevant, and objectionable matter. That the division of the co-partnership property and., securities belonging to the parties, had occurred before the execution of the bond, upon which the suit was founded. That the terms of the bonjJ could not be enlarged, as. was sought to be done, by the plaintiff below, on the trial, and that the Judge should have so decided and have over-, ruled the evidence^ That there was an uncertainty in the finding of the jury which this Court could not rectify,^ apd to this last point, cited various authorities. Dunn, for the plaintiff in err,or, claimed. that the condition of the. bond covered albthe deficiencies that, through-any contingencies, could arise, and-that the plaintiff in error was, by the- bond, made liable, under the evidence given on the trial of the cause. [MAJORITY — Whiton, J.] . By the Court.- Whiton, J. Lewis, and Woolfolk,, being partners in business, and having come to the determination to dissolve the partnership, Lewis entered into, a, bond to Woolfolk, conditioned to pay all the partnership debts, and save Woolfolk harmless therefrom, and to observe and keep a release of all demands, both for himself and one Julius Augustine, which release was recited in .the bondv An action was brought on the bond, by Wool-folk, and seven breaches assigned; one for an arrest, by Lewis, in a suit brought in his name, and in the name of Augustine, against Woolfolk, which is alleged to be a breach of the condition of the bond, inasmuch as that provides that Lewis shall keep and observe the release. I am, however, of opinion that this breach is not well assigned; as the assignment does not show that the debt upon which the suit was brought, was released. It is averred merely, that the account or claim, upon which it was founded, accrued before the date and execution of the bond. Now, this might well be, and yet the claim sued upon, not be one of those released, for the reason that, it might have come to Lewis & Augustine by assignment or transfer after the execution of the bond'. The assignment of the breach should have shown that this was one of the claims released; and in order to do so, the plaintiff should have averred that the claim or demand, not only accrued before the bond was executed, but that it was then owned by Lewis & Augustine. The other breaches assigned are, that certain partnership demands, which were transferred by Lewis to Wool-folk, as just debts, were found, when suits were brought upon them, to be worthless and not collectable, for the reason that they had been previously paid ; and it is averred that, in two instances, where suits were brought kpon these demands, the defendant, on the trial, pleaded and proved accounts in off-set, to a greater amount .than the demands sued upon; by which means, Woolfolk had a judgment rendered against him. These breaches are alleged to be within the condition of the bond, because they show that Woolfolk was not saved hai’mless from the partnership debts. This, I think, is true only of those demands which had been over-paid and in suits, upoh which Woolfolk had judgments rendered against him; for the amount thus over-paid; for I cannot think that the bond made Lewis guarantor of the demands transferred by him to Woolfolk. The term “partnership debts” cannot mean anything more than debts which they in fact owed to other pefsons. If a person Against whom they had an apparent demand, had paid it, or had An off-set against it, to its 'full amount, before the transfer to Wool-folk, there was, in fact, no debt due either to, or from them; and such a state of facts does not show a breach of the conditions of the bond. In the two cases above alluded to, in which the apparent debtors had offsets to a greater amount than the demands against them) the breaches are well assigned; and Lewis is háble on the bond for the amount thus paid by Woolfolk. To the replication of the plaintiff, assigning the breaches,’ the defendant filed a general demurrer, which was overruled. The defendant then filed a rejoindér, denying the liability of Woolfolk) and Averring that he took the demands subject to all legal tiff-set's, i'ii an amicable division of the partnership accounts, &c. The plaintiff filed a surrejoinder, alleging that the demands were transferred to him as just debts, still due, &c.; and on the issue thus formed, the parties went to trial. The jury found a verdict for the plaintiff, upon which the Court rendered a judgment, for the sum of two hundred and sixty dollars. The bill of exceptions shows that exceptions were taken to. the ruling of the Judge, during the trial, permitting the docket pf Peter. Coyle, a Justice of tire Peace, to' be read in evidence, which proved that in actions tried before him,.founded on the demands above alluded to, th» defendants proved payment on the demands or set-offs tq the amount of the claims sped upon. This evidence was only admissible to grove those breaches which wersj well assigned ; and was very properly objected to, sp-far as it related to the others. The Judge, therefore, erred in receiving it, and for this error the judgment must be reversed. We deem it un-i necessary to notice all the errors assigned, as the one al? fuded to is decisive. Judgment reversed, with costs.