
    Edward Vernon, Resp’t, v. James A. Simmons, App’lt.
    
      (New York Common Pleas, General Term,
    
    
      Filed December 2, 1889.)
    
    1. Account stated—What constitutes.
    Proof that defendant without objection retained accounts sent to him and subsequently said he had no money but would pay as soon as he could, is sufficient to sustain an action on an accouut stated.
    3. Same—Evidence — Exception necessary to baise question as to, in
    APPELLATE COUBT.
    Evidence as to an item not embraced in the account, but included in the bill of particulars, was admitted under objection, but no request to exclude it from the consideration of the jury was made, or exception taken. Held, that this court could not reverse on this ground.
    8. Pabtneship.
    Where it appears that plaintiff used a firm name on his letter heads; that a lease, was made to the parties jointly and that plaintiff had an interest in defendant’s contracts; but it also appeared that the use of the firm name was at defendant’s request to enable him to get contracts and that plaintiff’s interest in the contracts was a share in net profits for services, for each of which a separate agreement was made, and that on plaintiff’s offering to settle defendant replied in writing which contained no suggestion of unsettled partnership accounts, Held, that a finding that there was no partnership was correct.
    Appeal by defendant from a judgment of the general term of the city court, affirming a judgment in favor of the plaintiff, entered upon the verdict of a jury, for $1,163.27.
    Appeal from order of the general term, affirming order denying a motion for a new trial on the minutes.
    
      Emmet B. Olcott and W. Q. Judge, for app’lt; Geo. W. Stephens, for resp’t.
   Daly, J.

The plaintiff sent to the defendant on or about August 26,1884, two accounts, one for moneys laid out showing a balance of $293.13, and one for services amounting to $500, en closed in a letter demanding payment of these sums. The defendant retained the accounts without objection or making any reply, and subsequently, on meeting plaintiff, acknowledged the receipt of the letter, and said that he had no money to settle the account but would pay it as soon as he could. This proof was sufficient to sustain an action upon an account stated, and although the defendant swore that he never had any such conversation with plaintiff, the case was properly for the jury, and the verdict in favor of the plaintiff upon the issue of fact cannot be disturbed. The appellant in his brief upon this appeal ignored the evidence of express promise to pay the account as rendered, but such a promise is directly sworn to by plaintiff.

The account so sent to defendant did not include an item of $125 for money paid out for defendant prior to the time of rendering the account. This item was included in the bill of particulars annexed to the complaint and is part of the demand in the pleading. It was proved under the defendant’s objection. That ■ objection was a good one at the time, but it should have been followed up by a request to the court to exclude the item from the consideration of the jury; instead of doing so, the defendant permitted the court to submit to the jury, with the items of the account, this item of $125, with the evidence for and against it, without objection, and having done so, he cannot now claim error in that regard. The city court in its discretion, upon the motion for a new trial, might have reversed the judgment upon this ground, but in the absence of an exception to the charge upon this point we cannot do so.

The principal contention in the ¡ case arose upon the defence that the parties were copartners, and that the matters sued for were part of the. copartnership transactions, and that no settlement of such transactions had ever been had. The plaintiff denied the copartnership, and the jury believed him, although defendant affirmed the contrary, and several witnesses swore to plaintiff’s admissions in that regard, and there was uncontradicted evidence of the use of the firm name on letter-paper and in correspondence, and evidence of a lease to the parties jointly of an office for business purposes. The plaintiff explained that the use of the firm name upon the letter-paper was at defendant’s request, he saying that it would help him to get contracts; and plaintiff, while still denying that any partnership was agreed upon, admitted that he supposed he was to receive an interest in contracts obtained by defendant. What that interest was we can judge by one transaction, by which an interest in a contract was given to plaintiff by defendant. By an instrument in writing dated August 20, 1884, at about the close of the relations between them, the defendant assigned to the plaintiff, in consideration of one dollar and “ for services rendered,” “ one half part or portion of the net profits accruing to the defendant from the contract entered into between him and one John S. King, jointly, with the Ohio River & Lake Erie Railroad Company, for the building of the road from Greenville to a connection with the Nickle Plate Road.” From the language of this instrument it is manifest that the plaintiff did not receive the one half share of the profits as profits, but as compensation for services only. This piece of proof therefore, though introduced by defendant to prove a copartnership, did not prove it, but the contrary. It also appears from the testimony of plaintiff that when he applied for an interest in the other contracts, the defendant told him that a separate agreement must be made for each transaction. This was not denied by defendant, and is quite satisfactory evidence that no general nor in fact any copartnership agreement existed between them. In addition it appears, that when some eighteen months after the accounts were rendered to defendant, the plaintiff wrote to him offering, as he was ” very hard up,” to receipt in full for all demands if defendant would send him $125 in cash and a note at three or six months for a similar amount, saying that it was “settling at about twenty five per cent on the dollar,” the defendant in a written reply said that he was sorry to say that he could not comply with the request, if he could he would cheerfully do so, and nowhere in his letter makes any suggestion of any unsettled -copartnership accounts between them.

It is not surprising that the jury upon all this evidence found that there was no copartnership. There was not only nothing in the testimony which was conclusive against plaintiff’s claim, but on the whole evidence submitted to the jury they might properly find, as they did, that the parties were not and never had been partners.

The fact that the plaintiff was contradicted by several witnesses and by certain circumstances, including acts and alleged admissions of his own, might be ground for the general term of the city court for ordering a new trial if they thought that the plaintiff’s version was not corroborated by facts proved in the case; but we as an appellate tribunal cannot disturb the verdict on that ground if we would, there being sufficient evidence in the case to sustain the verdict. This is not a case where there is a mere conflict of oath against oath of plaintiff and defendant on the promise to pay ; the plaintiff is corroborated by the letter of defendant to which I have referred above.

There is no error in the charge. The defendant’s case was most fully and fairly submitted upon his requests.

The judgment and order should be affirmed, with costs.

Larremore, Ch. J., and Van Hoesen, J., concur.  