Foley v. Robards

• Decision Date: 31 December 1842
• Court: North Carolina Supreme Court
• Parties: PATRICK FOLEY v. WILLIAM H. ROBARDS, Jr. et al.

3 Ired. 177

25 N.C. 177

PATRICK FOLEY

v.WILLIAM H. ROBARDS, Jr. et al.

Supreme Court of North Carolina.

December Term, 1842.

Where a writ is issued against two copartners for a partnership debt, and one of them is arrested and gives bail, such bail, upon being afterwards compelled by due course of law to pay the debt, has no remedy except against the individual for whom he became bail. He has no claim upon the other partner.

The case of Osborne v Cunningham, 4 Dev. & Bat. 423, cited and approved.

Appeal from the Superior Court of Law of Granville County, at Fall Term, 1842, his Honor Judge SETTLE presiding.

This was an action of assumpsit, to which the defendants pleaded the general issue, and on the trial, the facts appeared to be these. The defendants, being partners in trade under the firm of Robards and Ferguys, on the 26th of March, 1839, made their promissory note in the name of the said firm, for $870 75, payable six months after date, to Messrs. Doremus, Suydam & Nixon, of New York--that on the 29th of October, 1839, the said Doremus, Suydam & Nixon sued out a writ from the Circuit Superior Court of Law, for the town of Petersburg, in the State of Virginia, against the defendants as partners, under the said name and style of Robards and Ferguys, upon which writ the defendant Ferguys was arrested, and gave a bail bond in due form for his appearance to answer the action with the plaintiff, as bail--that the writ was returned, “ non est inventus,” as to the defendant Robards--that judgment was duly obtained against the defendant Ferguys alone, by default, the writ being abated as to Robards for want of service--and that such proceedings were taken upon the judgment, that (the said Ferguys neither appearing nor paying the judgment nor any part thereof,) a recovery was regularly had against the plaintiff as bail, and the said judgment paid and satisfied by the plaintiff. The counsel for the defendant Robards insisted, that the plaintiff was not, upon this state of facts, entitled to sustain his action against the said Robards, because no privity was established between them, inasmuch as by becoming bail for the said Ferguys, the plaintiff incurred a liabilty not for the said firm of Robards and Ferguys, but for the personal benefit and relief of the said Ferguys only, and was not in law the surety of the said Robards or of the said firm--and as it was not proved nor alleged that the plaintiff had in fact become bail upon any request of the said Robards, the plaintiff had not shewn himself entitled to a verdict as against him; and the counsel prayed the court so to instruct the jury. The judge being of that opinion, instructed the jury accordingly. The jury found a verdict against the defendant Ferguys, and in favor of the defendant Robards, and the court having rendered judgment in pursuance of the verdict, the plaintiff appealed to the Supreme Court.

Badger & Waddell for the plaintiff .

Iredell for the defendant .

RUFFIN, C. J.

The opinion delivered to the jury is founded on the decision of this court, in the case of Osborne v Cunningham, 4 Dev. & Bat. 423; and, as we think, is in conformity to that decision. On the part of the plaintiff, however, a distinction is taken between the case of ordinary joint and several contracts, and that before the court; which is the case of partners, each of whom had authority to request for both, and on the credit of both, another person to lend money to pay their partnership debt, or to become in any way responsible for it. We admit that there is...