
    *John Moore v. Aaron G. Gano and William Thoms.
    An express written promise, to one partner, may be sued on by him alone. Where one who is a member of two firms makes a promissory note in the name of one firm, payable to a person who is a member of the other firm, the payee may sue and recover upon it at law.
    Th.e admissions of the common member of both firms can not be given in evidence to defeat a recovery on the instrument.
    An accountable receipt is equivalent, in legal effect, to a note, and its contents may be recovered under the general counts.
    Where time is not stated, as descriptive of the date of an instrument, its being made at a time different from that laid in the declaration, is not a fatal variance.
    This is a motion for a New Trial, from the county of Jefferson. Suit was brought on the 5th of June, 1838, in the court of Common Pleas of Jefferson county, against Aaron G. Gano, Wm. Thoms and William Talbott, upon the following accountable receipts, amounting to $23,007 :
    Bridgeport, 12th Month, 30th, 1836.
    Received of John Moore five thousand one hundred and ten dollars, which we promise to replace to the said Moore, on demand, with interest from date. Gano, Thoms and Talbott. '
    Bridgeport, 1st Month, 9th, 1837.
    Received of John Moore eight thousand three hundred and ninety-seven dollars, which we promise to replace to the said Moore, on demand, with interest from this date.
    Gano, Thoms and Talbott.
    Bridgeport, 1st Month, 10th, 1837. Received of John Moore five thousand dollars, which we promise to replace to the said John Moore, on demand, with interest from date.
    Gano, Thoms and. Talbott.
    ^Bridgeport, 1st Month, 13th, 1837.
    Received of John Moore two thousand dollars, which we promise to replace to the said Moore, on demand, with interest from this date.
    Gano, Thoms and Talbott.
    Bridgeport, 1st Month, 25th, 1837
    Received of John Moore twenty-five hundred dollars, which wa promise to replace to the said Moore, on demand, with interest from date. Gano, Thoms and Talbott.
    
      Process was served on Talbott, and returned, “ not found,” as to Gano and Thoms.
    The plaintiff declared upon special, and the common counts. An issue was regularly made up by William Talbott, on the plea of nonassumpsit and notice of setoff; and, at the November term, 1838, judgment was rendered in favor of the plaintiff for $16,038.36, the claim being reduced to that amount by setoff.
    On the 5th of June, 1839, a writ of scire facias, to make them parties to this judgment, was served on Aaron G. Gano and William Thoms; and, at the. March term, 1841, a trial being had, the verdict and judgment was in favor of the plaintiff, from which Gano and Thoms appealed.
    At the March term, 1842, of the Supreme Court of Jefferson county, the cause came on for trial, and, under the direction of the court, a verdict was rendered for the defendants.
    The plaintiff moved for a new trial, on the ground of a misdirection, by the court, in the following particulars :
    First; Because the court erred in its charge to the jury, by instructing them that the contract of partnership, between the said William Talbott, Aaron G. Gano and William Thoms, did not empower Talbott to borrow money for the use of the firm in the firm’s name. And that the plaintiff, being a partner with Talbott in another firm, to which the money belonged, he had constructive and sufficient notice of the terms and limitations of the partnership between Gano, Thoms and Talbott.
    ^Second ; That the court erred by instructing the jury that one of the receipts offered in evidence, which bore date 12th Month, 30th, 1836, but was described in the declaration as being made on the 30th of January, 1836, could not be admitted in evidence, by reason of the variance, and could not be given in evidence under the common oounts:
    Third : That the court erred by permitting the defendants to give in evidence the admissions of their copartner, William Talbott.
    The article of copartnership between Gano, Thoms and Talbott, was as follows :
    “ Article of agreement made and entered into this twenty-ninth day of December, 1835, by and between William Talbott, of Jefferson county, Ohio, and William Thoms and Aaron G. Gano, of Cincinnati, “The above parties hereby agree to enter into a joint speculation in lard, bulked meat, and barrel pork, and stock hogs.
    
      “ The purchases to be made by said Talbott, in Indiana and Illinois, or wherever he can make the best purchases, and at the best rates,, valuing on the said Gano and Thoms, from time to time, for the amount of said purchases ; each party to bear an equal portion of the profit or loss on said speculation, to be stopped at the option of either party. Said Talbott to charge nothing for personal services; all actual expenses to be charged to joint account. Said Gano and Thoms to remain in Cincinnati, to accept and protect said Talbott’s drafts, on joint account, and he to advise them, from time to time, as purchases are made, in order to effect insurance, when thought advisable.
    “Wm. Talbott,
    “Wm. Thoms,
    “ 1st day of January, A. D., 1836. “ A. G. Gano.
    “ Witness, Charles Duffield.”
    The receipt offered in evidence, and rejected, reads thus :
    “ Bridgeport, 12th Month, 30th, 1836.
    . “Received of John Moore five thousand one hundred and ten dollars, which we promise to replace to the said Moore, on demand, with interest from date. Gano, Thoms and Talbott.”
    *The count is as follows: [303
    Eor that, whereas, heretofore, to wit, on the thirtieth day of January, in the year of our Lord, one thousand eight hundred and thirty-six, at Bridgeport, to wit, at Jefferson county, in consideration that the said Aaron Gano, William Thoms, and William Talbott, doing business under the style and name of Gano, Thoms and Talbott, had, then and there, received of the said John Mo.ore five thousand one hundred and ten dollars; they, the said GaDO, Thoms and Talbott, made their certain receipt, in writing, and delivered the same to the Said Moore, and, thereby, undertook, and, then and there, faithfully promised to replace the said sum to the said Moore, on demand, with interest from date. Yet they, although often requested,” etc.
    The ease was argued by Edwin M. Stanton and H. Stanbery, for plaintiff.
    J. & D. L. Collier, Wright, Coffin and Miner, for defendants.
   Read, Judge.

One of the points made upon this motion is, that the court erred in their construction of the articles of agreement between Gano, Thoms and Talbott. As the construction of articles of copartnership is often times modified, or changed, by the construction which the parties themselves have given them, by their own acts, we shall not now express any opinion upon this point, but confine ourselves to the other errors assigned.

.It is said that the court erred—

First: In ruling out one of the receipts offered in evidence, on the ground of variance.

Second : In holding that Moore could not recover if Talbott were a common member of both firms.

Third : In admitting the declarations of Talbott in evidence, to defeat a recovery upon the receipts.

The averment of time in the declaration does not appear to be de304] scriptive of the receipt declared upon, and it would not *seem, therefore, to be a variance. But it is unnecessary to decide this point, .as the instrument was clearly admissible under the common count, for it was, in legal effect, a promissory note.

The charge that Moore could not recover if Talbott were a common member of both firms, was erroneous ; because the written instrument; upon which recovery was sought, fixed the legal rights and liabilities -of the parties. In actions at law, upon written contracts, the party to sue is the one in whom the contract vests the legal interest; and the parties to be sued are those upon whom it imposes the legal liability The contract itself determines the legal rights and liabilities of the parties, and confers the legal right of recovery. The written in■strument upon which recovery was sought, in this case, conferred upon Moore the right to recover at law of Gano, Thoms and Talbott.

This view, also, excludes Talbott’s admissions, as evidence to defeat the legal liability of himself and his partners, Gano and Thoms. Because, if the written instrument sued upon is obligatory, and authorizes a recovery at law against all the members of the firm, to allow the admissions of one partner, jointly bound, to release a part of the members of the firm, would be to permit, in effect, one person, so bouud, wholly to change the contract, without the consent of him who has the legal interest in the contract. To suffer one party to a contract, by his admissions, to alter its legal effect, would violate that principle of law which requires the consent of all the parties to a contract, in order to alter, limit, or abolish it. A party can not be permitted, by his own parol admission, to contradict or defeat his written instrument. The admissions of Talbott were improperly received.

Verdict set aside, and new trial granted.  