
    ALEXANDER COBURN v. CASSIE & FRASER.
    Washington County,
    1893.
    Before : Ross, Ch. J., Rowell, Munson .and Start, JJ.
    
      Partnership. Covenant to pay debts upon dissolution.
    
    The defendants, being partners in the granite business, purchased a quarry, in part payment for which they gave their joint and several notes and secured the same by mortgage on the quarry. Subsequently, June 17, the defendants quit-claimed their interest in the same to the plaintiff, and the plaintiff transferred his interest in the personal property and stock of the partnership to one of the defendants. Later, June 24, the parties executed an agreement under seal by which the plaintiff conveyed his interest in the debts due the partnership to the defendants, and they covenanted to see him harmless from all debts contracted in or about the former partnership. Held, that they thereby became bound to pay the notes given for the quarry.
    Covenant broken. Plea, the general issue. Trial by court at the March term, 1893, Taft, J., presiding. Upon the facts found by the court, judgment was given for the defendant. The plaintiff excepts. The opinion states the case.
    
      Martin & Slack and Dillingham, Huse & Howland for the plaintiff.
    Under a plea of the general issue the only defence open to the defendant was that covenant had not been broken. He could not show an estoppel. Chitty PL, 487-518; Gould PL, 284 and nóte; s. 301, 41, 42, 43 ; Stephen PL, 151 ; Gardner et al. v. Gardner et al., 10 Johns. 47 ; Legg v. Robinson, 7 Wend. 194; Brazee & Carroll v. Blake & Gay, 5 Ohio 340 ; Granger, Admr., v. Granger, 6 Ohio 35 ; Reynolds et al. y, Rogers' Exrs., 5 Ohio 169; Abbott v.' Allen et al., 14 Johns. 248.
    
      George W. Wing for the defendant.
   The opinion of the court was delivered by

ROSS, Ch. J.

It is found that the parties, prior to June 17, 1891, were partners in the granite quarrying and cutting business. In establishing and conducting this partnership business they had purchased a quarry and given their notes, secured by a mortgage on the quarry, for a part of the purchase money. With this condition existing, on June 17, 1891, the defendants, by a quit-cláim deed, conveyed to the plaintiff the quarry and their interest in the blacksmith shop, derrick and all tools on the quarry land. Contemporaneously, the plaintiff convéyed to the defendant Cassie, for a money consideration, all his interest in the partnership works, and in all the tools and stock in the shéds and yards of the partnership, therein stating that the plaintiff was to have no responsibility for the debts contracted on or before, or after that date, by reason of any business which had been or might be carried on in the sheds or yards, except one-fourth of the loss on a specified transaction. By his acceptance of the plaintiffs conveyance an implied agreement arose on the part of Cassie to pay and save the plaintiff harmless from the indebtedness described, but no express agreement to that effect was entered into by Cassie, and no agreement with reference thereto by Fraser. The conveyance by the plaintiff did not, in terms, transfer to Cassie the plaintiff’s interest in the debts due the partnership. While their matters were thus situated, on June 24, 1891, by an indenture under seal, between the plaintiff of the first part and the defendant of the second part, the partnership was-dissolved and the plaintiff conveyed and assigned to the defendants all the debts and sums of money due and owing-the partnership, also all the tools, stock and good will of the partnership except the private tools of the plaintiff, and the property conveyed to the plaintiff by the deed dated June June 17, 1891, and agreed to pay defendant Cassie fifty-five-dollars ; and the defendants agreed to discharge and pay all-debts and sums which the three jointly owed, or which were chargeable upon the partnership, or upon either or any of them as partners, to any person or persons, for or by reason of their joint trade or partnership, excepting one-fourth of the loss which might come from the transaction specified in the conveyance from the plaintiff, dated June 17, 1891. The trial court found that no facts were shown which varied the legal operation of these three written contracts or conveyances. The indenture was under seal. It is not claimed that it will not support the action of covenant broken if there-has been a breach of its provisions. The plaintiff has been called upon to pay, and has paid, a portion of the partnership notes heretofore mentioned, secured by mortgage on the quarry conveyed to the plaintiff. These notes were-given in prosecution of the partnership business, and fall within the class of indebtedness which the defendants, by the indenture of June 24, 1891, agreed to pay and discharge. The notes have fallen due and the defendants have failed to pay them, and the plaintiff has been called upon, and did pay them, in part. To the extent he had paid, before bringing this suit, less the loss on the excepted transaction, the-plaintiff is entitled to recover.

'Judgment reversed, and judgment for the -plaintiff ta recover §325 with interest, to be computed by the clerk, and costs.  