#### Jewell and another, Respondents, vs. Ketchum, Appellant.

*May 7*

September *22, 1885.*

*Partnership: Dissolution: Agreement to pay firm debts.*

A partner who, on the dissolution of the firm, retains all the partnership property, and in consideration thereof agrees to pay all the firm debts, will be hable in an action at law to his copartner, who has been compelled to pay a firm debt by reason of his failure to keep his promise.

APPEAL from the Circuit Court for *Wmopaca*County.

The case is thus stated by Mr. Justice-Cassoday:

“ The plaintiffs and the defendant were partners. They dissolved by mutual consent. By the terms of the dissolution the defendant was to have all the interests of the plaintiffs in the property and assets of the firm; and, as a part of the consideration therefor, the defendant was, according to his version, to pay the indebtedness of the firm up to $5,400; but, according to the version of the plaintiffs, he was to pay all the indebtedness of the firm, including a debt of the firm to the plaintiffs personally for $430 and interest. The defendant failed to pay to the plaintiffs any portion of the $430 or interest, and also failed to pay any portion of a note held by one Rodell, and upon which he obtained judgment against all the members of the firm, April Y, 1880, and issued execution thereon, and in satisfaction of which the plaintiffs paid $122.63. This is- an action at law, commenced June 22, 1880, to recover the $430 and interest, and the $122.63 so paid by the plaintiffs, and the interest thereon.

“Upon the issue being joined, the cause was tried by the court without a jury, and the court found the facts, in effect, according to the version of the plaintiffs. As conclusions of law the court found, in effect, that the plaintiffs were entitled to recover from the defendant the amount of the two sums named, with interest from the time of the commencement of the action, amounting to $Y04.03. Erom the judgment entered accordingly the defendant appeals.”

*629For tbe appellant tbe cause was submitted on briefs by *G. W. Oate.*

For tbe respondents there was a brief by *JacJcson*cfi *Thompson,*and oral argument by *Mr. Thompson.*

Tbe following opinion was filed Juñe 1, 1885:

Oassoday, J.

Tbe findings of fact seem to be supported by tbe evidence. At all events, we do not feel warranted in disturbing them. Tbis being so, it must be regarded as a verity in tbe case that tbe defendant, in part consideration of tbe firm property wbicb be received,- agreed to pay all tbe indebtedness of tbe firm, including‘tbe debt wbicb tbe firm o'Wed tbe plaintiffs for borrowed money. Tbe failure to pay that debt to tbe plaintiffs was a breach of that agreement. So tbe failure to pay tbe debt of tbe firm to Bodell was a breach of that agreement. That breach, and tbe fact that the plaintiffs were compelled to pay Bodell, entitled them to recover back tbe amount so paid from tbe defendant. Tbis recovery was not dependent upon tbe settlement or adjustment of tbe partnership business, nor any part of it, but upon tbe fact that by reason of tbe defendant’s breach of contract tbe plaintiffs were compelled to pay a firm debt, wbicb, as between tbe parties, tbe defendant bad for a valuable consideration, in effect, agreed to assume and pay and save tbe plaintiffs harmless therefrom. Having-failed to keep bis express promise, be was liable at law for tbe damages sustained by reason of tbe breach of bis promise. *Gauger v.*Pautz, 45 Wis. 449; *Edwards v. Remington,*51 Wis. 336.

*'By the*Court.— Tbe judgment of tbe circuit court is affirmed.

Upon a motion for a rehearing there was a brief for tbe appellant by *G. W.*Cate, attorney, and *E. P. Smith,*of counsel, and a brief for tbe respondents-by *Jaclcson ds Thompson.*

Tbe motion was denied September 22, 1885.