Jewell v. Ketchum

23 N.W. 709, 63 Wis. 628, 1885 Wisc. LEXIS 269

• Court: Wisconsin Supreme Court
• Decided: September 22, 1885
• Status: Published

Opinion

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.