Opinion
March, 1799.
Wilson for plaintiff. Bayard for defendant.
Waples, the plaintiff, and Lingo had been partners in a blacksmith's shop at which work had been done for the defendant for which this action was brought.
Upon the plea of discount the defendant offered in evidence his book of accounts containing charges against Lingo only but for articles principally delivered for the use of the shop. He showed at the same time a copy of the same account upon which the items had been added up and the interest cast on the balance by Waples, the surviving partner.
This evidence was opposed by the counsel for the plaintiff on the ground that the action was to be considered as a joint action of partners and the discount as a separate charge against one partner which was not admissible. Tidd Pr. 216-17; 5 Term 493.
It was answered that the form of the account was not binding and as it appeared on the face of the account that the articles were furnished for the use of the partnership the party should be allowed to show that in fact it was a partnership account. It was further insisted that the account was virtually admitted as a charge against the partnership by the act of the surviving partner in adding up the items and casting interest which made it a stated account and would be sufficient evidence to support an action upon an account stated against the surviving partner.
The general rule laid down by the plaintiff's counsel is certainly just that a separate debt cannot be set off against a partnership claim. We do not however conceive that the admission of the present evidence will infringe that rule. The evidence is not offered to prove a separate but a partnership debt. For that purpose the evidence is admissible. The nature of the account which is of articles consumed in the shop of the partners, and the act of the surviving partner relative to the account are circumstances which it does not belong to us to say prove a partnership debt but which ought to be allowed to go to the jury in order to enable them to decide on the fact.
Evidence admitted.