
    [Philadelphia,
    January 17, 1826.]
    SHEEPSHANKS and others against COHEN and another.
    IN ERROR.
    Assignment by 3. B. of all the effects of the late firm of ft and B., B. B. and Co, and of B. B., in trust to pay such creditors of the late firm of Y. and B., and of jB. B; and Co., as shall release all claims against the said late firm of It and B. and against the said B. B. and Co. within a certain time. Plaintiff, a creditor of B. B. and Co., executed a release within the time prescribed of all claims against the firm of B. B. and Co. Held, not to be conformable to the provisions of the assignment.
    Writ of error to the District .Court for the city and county of Philadelphia. The plaintiffs in error were defendants below.
    
      Cohen and Nesbit, the plaintiffs below, brought a suit against the defendants below, as assignees of the late firm of Benjamin Bates and Co., to recover such dividend as may have been due upon the sum of seven hundred and two dollars and forty-three cents, with interest, alleged to be due from B. Bates and Co, under the following circumstances:
    
      B. Bates, of the firm of B. Bates and Co., and John Davis, of the firm of Anderson and Davis, came to the store of the plaintiffs below, on the 24th of October, 1818, and examined a parcel of vestings. A bale was bought of the plaintiffs below, to the amount of seven hundred and two dollars and forty-three cents. The goods, &c. bought were charged to the account of Anderson and Davis and B. Bates and Co. on the plaintiffs’ books at six months’ credit, in the handwriting of the said Nesbit, who was not present at the sale. But it was denied by the defendants that the goods were sold to Anderson and Davis and B. Bates and Co. by the plaintiffs. They alleged the sale to have been only to Anderson and Davis, while the plaintiffs alleged that they were sold to both. The plaintiffs gave evidence that Davis and Bates went to the store to look at the vestings; that if they suited, Bates was to take a part, and that after examination they agreed to take a package. Mr. Cohen asked where the goods should be sent to, and Davis answered, “You may as well send them to Anderson and Davis’s store.” They were sent there, with a bill made out, accordingly.
    The defendants gave evidence, that Bates said nothing to the plaintiffs about buying; that he had nothing to do with the pur-' chase of the goods; that Davis said to Cohen, “ I will take this,” and that Cohen asked who the goods were to be charged to, when Davis said, “to me;” that the plaintiffs received through a Mr, Fatteral the note of Anderson and Davis for seven hundred and two dollars and forty-three cents, for the goods sold, which at maturity, the 27th of April, 1819, was protested for non-payment, and notice given thereof to Bates; that Bates and Co. bought part of the vestings from Anderson and Davis, and gave their note for three hundred and forty-one dollars and five cents therefor, which was passed away by Anderson and Davis, and paid at maturity by Benjamin Bates and Co. or their indorsees. -The note of Anderson and Davis was received and held by the plaintiffs until due, and passed to the credit of the goods on the books of the plaintiffs. The assignment of B. Bates, under which the plaintiffs claimed, provided for the payment of certain debts, viz. those due from the firm of B. Bates and Co. from Young and Bates, and it provided for a release from all claims,&c. A release was tendered in due time.
    The court charged the jury (among other things) as follows: “ If Bates and Davis came together to buy, examined together, and they or Bates disputed the price, and the answer was, the plaintiffs might as well send the goods to Anderson and Davis, then the defendants may be considered as joint purchasers. If there is sufficient evidence to imply an agreement by Bates to be jointly liable, that is sufficient. The legal objections are not well founded. It is a just charge on the funds within the terms of the assignment, and the release is sufficient.”.
    The assignmént of Benjamin Bates, for himself and Benjamin Bates and Co., was made to Francis Milligan, William Sheep-shanks, and John Phillips, and dated May 14th, 1819, of “all effects belonging to the late firm of Young and Bates, or to Benjamin Bates and Co., or to the said Benjamin Bates in his individual capacity, in trust to pay over the moneys so obtained in equal, just, and rateable proportions, to the payment and satisfaction of such of the creditors of the said late firm of Young and Bates, and of the firm of Benjamin Bates and Co. as shall within thirty days from the date of this indenture execute and deliver to the said trustees, or either of them, a'good and sufficient release and. discharge of all their claims and demands against the said late firm of Young and Bates and against the said Beniamin Bates and Co.”
    The assignment was accepted by the defendants on the 14th of May, 1819, acknowledged on the same day, and recorded on the 14th of June, 1819.
    The release was as follows:
    “To all to whom these presents shall come, — we whose hands and seals are hereunto annexed, creditors of Anderson and Davis and Bates and Co., send greeting. Whereas the late firm of Benjamin Bates and Co., together with Anderson and Davis, are indebted to us in sums of money, which they are not fully able to satisfy: And whereas Benjamin Bates did, by a deed of assignment, dated May 14,1819, convey and assign to Francis Milligan, William Sheepshanks, and John Phillips, all his estate in trust for the creditors therein mentioned, on certain conditions, as appears by the assignment: And whereas we are desirous of availing ourselves of the provisions in the said assignment, and have agreed to make and execute a release pursuant to the said deed: Now know ye, that as well for the considerations aforesaid, as of the sum of one dollar to us in hand paid by the said Benjamin Bates, at the time of the execution hereof, the receipt whereof is hereby acknowledged, we have and do by these presents, remise, release, and for ever discharge the said firm of Benjamin Bates and Co., their or his heirs, executors, administrators, or assigns, of. and from aíl debts, dues, claims, and demands whatsoever, in law or equity, which we now have against the said firm, reserving to ourselves any right against the firm of Anderson and Davis.”
    
    The plaintiffs in error assigned for error,
    1. That the charge of the court was erroneous in this, — that it is not necessary to prove an express agreement to bind Bates, as an implied one is sufficient.
    2. That the said charge is erroneous in this, — that if Bates and Davis came together to buy, examined together, and they or Bates disputed the price, and the answer was, the plaintiffs might as well send the goods to Anderson and Davis, then the defendants may be considered as joint purchasers.
    3. That the said charge is erroneous in this, — that the bill (viz. of the goods sold by the plaintiffs,) sent to one was substantially sent to both.
    4. That the said charge is erroneous in this, — the legal objections are not well founded: it is a just charge on the fund, within the terms of the assignment, and the release is sufficient.
    
      Broom, for the plaintiffs in error.
    
      Bradford and T. Sergeant, contra.
   The opinion of the court was delivered by

Duncan, J.

This was an action brought by Cohen and Neshit against the plaintffs- in error, the assignees of Benjamin Bates and Co., to recover a dividend of the effects of B. Bates and Co., under an assignment made by B. Bates to them of “all the effects of the late firm of Young and Bates, Benjamin Bates and Co. and Benjamin Bates in his individual right, in trust to apply the money obtained on the assignment to the payment.and satisfaction of such of the creditors of the said late firm of Young and Bates and Benjamin Bates and Co. as should within thirty days execute and deliver to the trustees, a good and sufficient release and discharge of all their claims and demands against the said late firm of Young and Bates and Benjamin Bates and Co.” Cohen and Neshit did, within the thirty days, execute a release of all their claims and demands against Benjamin Bates and Co.

On the trial in the District Court two questions arose, one of fact, which was, whether Benjamin Bates and Co. were the debtors of Cohen and Neshit, or were only sub-purchasers from Anderson and Davis, of a quantity of vestings sold by Cohen and Neshit.

There was some contradiction in the evidence, but certainly enough to have left it to the jury to conclude that the goods were sold on a joint contract to Anderson and Davis and Bates and Co. They were together when the goods were contracted for, they examined them together, they were charged as joint purchasers, £^nd a joint bill was made out, which was sent with the goods to Anderson and Davis. This certainly was pretty strong evidence of a joint sale, and would require strong testimony to repel it. Whether such evidence was given was a fact for the jury, and, as a fact, it was left to them, in some measure depending on the credit to be given to the witnesses. The concurrent circumstances of a joint sale, viz. the entry in the books of Cohen and Nesbit and the joint bill, cannot fail to make this impression.

I do not think the charge is exposed to the exception taken to it, that the case was put to the jury that there' was ground for an implied promise, or to raise a promise by construction of law. When the court speak of an implication, it is not to be considered that they intended the action on an implied promise arising by operation of law, but an inference to be drawn from the circumstances of an express joint contract. Express contracts are, where the terms of the agreement are fixed by the contracting parties. They arise from the agreement of the parties, but it is not necessary to prove the agreement by any precise form of words. Whatever will satisfy the jury of the assent of two minds to do, or hot to do a particular thing, is satisfactory proof of any express agreement. Any thing which shows the assent of the parties is sulficient. Implied promises are such as reason and justice dictate, and which therefore the law presumes every man undertakes to perform; as, where a man orders goods of a tradesman, without any agreement as to price, the law concludes that the bargainor contracted to pay the seller the real value. It is difficult to state with certainty when contracts and promises are exclusively implied, though, as a general rule, it may be observed, that promises in law only exist where there is no express stipulation between the parties. Toussaint v. Martinnant, 2 T. R. 105. There was no question here but there was an express stipulation by somebody to pay for these goods, and the question of fact was, whether it was a stipulation by Anderson and Davis and Bates and Co., and so it appears to me it was properly left to the jury. There is no error, therefore, in this part of the charge.

But there was a question of law, whether .the plaintiffs had entitled themselves to come in upon this fund, by executing a proper release, and, in the opinion on that question, I think the court fell into error. Nesbit and Cohen had their élection to come in and partake of the benefit of this assignment, or to decline it, and sue for the debt. But, if they did come in, it must be on,the prescribed condition. The performance of this was a condition precedent. . It is not for the court to say, there was any thing unmeaning in the requisites, or that they meant otherwise than they express. The court would willingly act on the construction contended for by the defendants in error, if the effects of the late firm of Young and Bates and Bates and Co. had been kept separate, and were distributed in that order, and so would have construed the words, reddendo singula singulis. But it has pleased the author of the fund out of which payment is demanded, to throw the effects of Young and Bates and Bates and Co. into one common stock, and to direct the estates of both, without any reíation to the amount due by each, to be paid out of that common stock, in proportion to the amount of the/lebts against both. What were the reasons of Benjamin Bates for this we cannot know; but he has thought proper so to modify the whole of his co-partnership concerns as to consolidate the debts and effects. Those creditors of the different firms who have acceded to this consolidation are bound by it. Now, by the structure of this assignment, whoever came in, and on whatever account they came in, were previously to relinquish all their claims and demands against all the firms. Where effects are consolidated, the release should then be commensurate, and go to the discharge of all those parties whose funds were thus consolidated.

Now, if Cohen and Nesbit recover in this action against Bates and Co., it is out of the joint funds of Young and Bates and Bates and Co, The effects of Young and Bates would, for aught that appears, then, be appropriated to the payment of Bates and Co’s, debts, and Young and Bates still remained liable personally to any other claim of Cohen and Nesbit. It is said, in answer to all this, non constat they have any other: to which it is very properly replied, non constat but they have. We know not, nor can we know, whether they have or have not. The creator of this fund has chosen to make the full release of all debts for which he was bound, under the name of every firm in which he had embarked, a condition precedent, the performance of which was necessary, before any creditors of any firm should come in, for any dividend of the united funds of all the firms.- The plaintiffs below have not done so, and can claim nothing from the fund in the hands of the defendants, the plaintiffs in error; and the judgment is for. this reason reversed.

I would further observe, that if the plaintiffs in error were liable, it must be as trustees and assignees, not of Bates and Co, alone, but of Young and Bates and Bates and Co.

Judgment reversed, and a venire facias de novo awarded.  