
    JAQUES AND AL. v. HULIT AND AL.
    On Certiorari to Burlington Common Pleas.
    Every objeolion which goes only to the form of the remedy, and does not question the plaintiff's right to recover in any shape, must be made on the first trial, and the omission to object, is considered a waiver of the objection.
    The real balance ascertainable by a correct addition, or subtraction, is that by which, parties are bound, and upon which the law raises a promise to pay.
    An Action lies ,to recover money which appears due, upon correcting a mistake in the statement or settlement of accounts.
    A mutual covenant to divide the proceeds of a certain crop, if it be a partnership, is so only for a special purpose, and terminates as soon as the crop is sold; and an action lies by one of the parlies against the other, for any balance due thereon to the plaintiff, from the defendant, without resorting to the action of account render.
    
    
      Hamilton, for plaintiff in Certiorari.
    
    
      II. W. Oreen, for defendant.
    THE STATE OF THE CASE.
    Timothy Hulit and Isaac Pullen, sued Richard Jaques and Samuel R. Jaques, in an action of debt, before a justice. The plaintiff’s state of demand, sets out, that it had been agreed between them and the defendants, by an article of agreement, under their hands and seals, that in consideration of a certain sum of money to be paid by the defendants to the plaintiffs, the defendants should have one half of the peaches then growing in a certain Peach Orchard of the plaintiffs; “ that all the peaches should be marketed together, for the benefit of the said parties; each party to be at one half of the expense, and receive one half of the profits accruing thereon.” The plaintiffs then aver, that'the peaches were marketed together; that the sales thereof after deducting all expenses, amounted to $2064.19, of which sum, there had been received by the defendants, the sum of $1868.36, over and above the expenses paid by them ; and by the plaintiffs, the sum of $195.83; over and above their expenses: that the defendants had paid to them, a certain sum, specifying the amount, in part of the excess, so received by the defendants, but that there remained due to the plaintiffs, the sum of $56.26 cents, for which, the action was brought.
    The defendants pleaded in writing as follows: “ The defendants come and plead a settlement of all accounts between the parties, on 29th March last, as per statement annexed, and the plaintiffs thereupon became indebted to them, in the sum of sixty-nine dollars and sixty cents, balance &e.,” for which, with interest, the defendants prayed judgment.
    To this plea, was annexed an account, shewing upon the foot of it, a balance of sixty-nine dollars and sixty cents, in favor of the defendants. On the trial before the justice, no objection was taken, on the ground of its being an open partnership transaction, but the parties proceeded upon the ground of a settlement, each claiming a balance upon the foot of the account stated; the plaintiffs insisting, that though the items were correct, yet that by errors in addition, or subtraction, apparent on the face of the account, the balance was erroneously footed in favor of th° defendants, whereas a correct addition or subtraction of the figures, shewed a balance in favor of the plaintiffs. The jury rendered a verdict for the plaintiffs, and judgment was given accordingly. This judgment was affirmed on appeal, and a reversal of that affirmance, is the object of this Certiorari.
    
   The opinion of the court was delivered by

Hornblowee, C. • J.

The counsel for the plaintiffs in Certiorari, insist, first, that the agreement between the parties in this case, constituted a partnership and 2dly, that the agreement being under seal, no action of assumpsit can be maintained for the balance due one partner, even if such balance has been struck.

If this was a partnership at all, it was for a special and limited purpose, and terminated as soon as the peaches had been taken to market and sold, (3 Kent’s Com. 27, 1st ed.) But it is not now material to determine whether the parties to this suit, ever stood in the relation of partners with each other or not, for two reasons: 1st. because no exception was taken on that point, on the trial before the justice, (Smith v. Allen, 18 Johns. R. 245. Jessup v. Cook, 1 Halst. R. 436. Den v. Helmes and al. Penn. R. 1050.) Every objection which goes only to the form of the remedy, and does not question the plaintiff’s right to recover in any shape, must be made on the first trial — an omission to do so, will be considered a waiver of the objection.

But 2dly. Here was, by the defendant’s own admission, not only an end of the partnership, if one ever existed, but a settlement of the accounts. At least there was an account stated, and the mere fact that an error had been made in footing the account, by a mis-addition or subtraction of figures, did not unsettle it, and open the whole matter. Nor does the plaintiff’s second objection rest on any better foundation. The case of Foster v. Allanson, 2 T. R. 479, cited by the plaintiffs’ counsel, does not support .his position that assumpsit will not lie, because the balance, if any, arose upon a transaction, respecting which, the parties had entered into a covenant by deed. The contrary is plainly ruled by a majority of the court, in that case, and in Moravia v. Levy, mentioned in a note to that case, (Page 483,) which was assumpsit for a balance struck on a partnership account, the objection was distinctly made and overruled. Buller, Justice, said: It does not signify how the debt arose. Here is an express promise to pay the balance which has been struck: and that is the ground of the action.” But it is not even necessary that there should bean express promise — on the contrary, upon a mutual statement and settlement of accounts between partners, there is an implied promise in law, on the part of him, against whom the balance is found, to pay his co-partner. Backstraw v. Imber, 1 Holt’s R. 368.

If the various items composing an account, are agreed upon and set down by the parties, it is an account stated; on which side the balance lies, is matter of addition and subtraction; and whether a mistake has been made in footing the account, and striking the balance, or not, is immaterial, so far as respects the legal effect of an account stated. The real balance is always ascertainable by a correct addition and subtraction, and it is that by which the parties are bound, and upon which, the law raises a promise to pay. Let the judgment be affirmed.

Ford and Ryerson, Justices, concurred.

Judgment affirmed.

Cited in Steward v. Sears, 7 Vr. 176.  