
    George Leach v. James T. Church Administrator of Tuenis A. Kagy, deceased.
    A not© of a surviving member of a firm, given by him to the creditor of the firm, on an adjustment of such creditor’s claim against the firm, will not be regarded as given and received in satisfaction of the firm debt, unless the testimony affirmatively and clearly shows such to have been the agreement of the parties. Merrick v. Bonxy & Sons, á Ohio St. Kep. 60, followed and approved. ’
    Error to the district court of Fairfield county.
    The original action was brought by Leach against Church as administrator of Tuenis A. Kagy, and one Aaron A. Kagy his surviving partner, to recover a balance claimed to be due to Leach for feeding and fattening certain stock hogs of the late firm of A. A. & T. A. Kagy (the said decedent and said survivor having constituted the firm), under a contract between Leach and the firm.
    Aaron A. Kagy failed to answer or demur to Leach’s petition, but Church answered, raising the question whether a note of the amount of Leach’s claim, given to him after T. A. Kagy’s death, by the survivor, Aaron A. Kagy, who alone executed the note, was given and accepted in satisfaction, and discharge of Leach’s claim against the firm.
    This question was submitted to the district court, in September 1860, for trial upon the following agreed statement of facts, being all the testimony that was offered, to-wit:
    The partners, Aaron A. Kagy and Tuenis A. Kagy, entered into the contract mentioned in the petition. Afterward on the 9th April, 1858, the firm was dissolved, by written agreement, as follows :
    “ Dissolved partnership — This day the firm of A. A. & T. A. Kagy, by mutual agreement have agreed to separate. The firm was A. A. & T. A. Kagy, alone in partnership in all the stock bought in Ohio and delivered east. They have stock in Illinois, of which J. L. Wilson has one half. These names constitute the firm. A. A. Kagy agrees to take all the stock now on hand and contracted for, at the first cost, also the contracts at the contract price. • He also agrees to pay all the bank debts; also all the debts owing by the firm of all descriptions, and release T. A. Kagy from all trouble and responsibility in all cases, so far as the firm stock business is concerned, done in Ohio, or delivered east, that is, the stock that is on the road, and stock to start on the road. And T. A. Kagy, for his part, agrees to take the one half of the stock owned by A. A. Kagy and T. A. Kagy, and J. L. Wilson, and said Wilson to retain his one half as before. T. A. Kagy is to pay A. A. Kagy the money that is now invested in the Illinois stock; and T. A. Kagy agrees to go to New York and stay to see the sale of some of the stock for A. A. Kagy. This agreement being made this 9th day of April 1853. We have hereunto set our hands and seals. A. A. Kagy, T. A. Kagy.”
    The plaintiff had notice of the dissolution of the firm,, and of the terms, prior to the execution of the note.
    T. A. Kagy died intestate, July 3,1853.
    During the existence of the firm the contract between it and the plaintiff was made, as he alleges, and its stipulations on his part duly performed by him; and at the time and place specified in the contract the plaintiff delivered to A. A, Kagy, as surviving partner, hogs to the amount of $729.89, according to the contract.
    On the 16th January, 1854, the plaintiff, having notice of the dissolution of the firm and of its terms, settled and adjusted with A. A. Kagy the account and dealings between the firm and himself, and on such settlement A. A. Kagy gave his promissory note to the plaintiff for the amount found due from the firm to the plaintiff. The note reads thus: “ Due George Leach or order seven hundred and twenty-nine dollars and eighty-nine cents, value received. A. A. Kagy.” “ Credit on the above note, seventy-two dollars and fifty-seven cents.” The plaintiff received this note and retained and kept the same up to the time of commencing this action. When the note was given and received nothing was said by the plaintiff or A. A. Kagy whether the note was, or was not, given and received in satisfaction and discharge of said indebtedness so due from said firm to the plaintiff. All that was said or done by the plaintiff and A. A. Kagy, at the time the note was given and received, or at any other time, was, that A. A. Kagy said to the plaintiff, that the note was given to show the balance due to the plaintiff, and that he had money enough to pay, and would pay it in a few days. Afterward the plaintiff asked A. A. Kagy for the same, but did not get it. The note still remains unpaid; and.the plaintiff brought it into court and offered to cancel and give it up.
    Upon these facts the district court found in favor of the defendant, Church, as administrator of T. A. Kagy, deceased,
    
      The plaintiff moved for a new trial on the ground that the finding was against the weight of the evidence, and should have been for the plaintiff instead of the defendant.
    The court overruled this motion and entered' judgment on the finding. The plaintiff excepted and filed in this court his petition in error to reverse that judgment.
    
      JP. Van Trump and W. A. Shultz, for plaintiff in error.
    
      Martin &¡ Schleich, for defendant in error.
   By the Court :

The judgment of the district court must be reversed and judgment entered for the plaintiff, upon the agreed statement of facts, on the authority of Merrick v. Boury & Sons, 4 Ohio St. Rep. 60.

To authorize the finding and judgment of the district court, the testimony should have shown, affirmatively and clearly, that when the note was given and received, it was agreed between the parties to that transaction, that it was in satisfaction of the firm debt.

We are of opinion that the testimony fails to show such agreement.

Judgment reversed and judgment for the plaintiff.  