
    Oscar P. Kemp et al., App’lts, v. Alexander D. Peck, Survivor, Resp’t.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed February 4, 1891.)
    
    Partnership—Account stated—Estoppel.
    If an account stated is presented to one person charging him as liable as partner with another person, however much the account might conclude the former as to the amount of the claim, he is not thereby estopped from proving and alleging in an action that the other person was not his partner.
    Appeal from a judgment entered upon the report of a referee, dismissing the plaintiff’s complaint with costs.
    The action was" prosecuted against Alexander D. Peck as survivor of an alleged copartnership of Alexander D." Peck and .George A. Peck, George A. having died.
    ' The complaint alleges that the plaintiffs were copartners, and that as such they sold the goods charged in the complaint to George A. Peck and A D. Peck at their special instance "and request, but does not in terms allege that they were partners, alleges the death of George A. Peck before the commencement of this action.
    The defendant denies each and every allegation of the complaint except the death of George A. Peck.
    On the trial, the plaintiff proved various declarations of George A. Peck and Alexander D. Peck, tending to prove that they were partners, which was met by testimony offered by the defendant, tending to deny the existence of that relation.
    The plaintiff also sought to establish defendant’s liability by proof of an account stated; which was also met -by evidence tending to deny the same. The referee reported in favor of the ■defendant
    
      John Lansing, for app’lts; V. P. Abbott, for resp’t
   Mayham, J.

The referee in this case, upon the conflicting •evidence as to the existence of a copartnership between Alexander D. Peck and George A. Peck, found that they were not" at .■any time during the accruing of the account on which this action was brought copartners.

There is certainly evidence to support this finding, and sufficient, we think, to uphold.

The evidence on this subject may be regarded as somewhat equally balanced.

But in such a case the court on appeal will not interfere with the finding of the trial, upon the well settled and sound rule that the jury or referee required to pass upon disputed questions of fact, upon a conflict of evidence, having the witnesses before them, are better able to judge between them as to the probable truth of the evidence than the court on review, who sees only the record.

As there is no decided preponderance in the oral evidence and no circumstance to give added weight to the testimony offered by the plaintiff on this subject, we see no reason for interfering with the referee’s report on that subject

The testimony of Mrs. Peck relied upon by the plaintiff was more a conclusion of the witness than a statement of facts by her, and in it she is expressly contradicted by the evidence of the defendant, Alexander D. Peck, which fairly raises a question of fact for the referee.

He swears that George A. Peck worked his farm on shares, that George A. had no machinery, that he, Alexander, bought the machinery, and paid for the same, and explains how George A. Peck’s name came to be used in the mortgage.

But the plaintiff insists that the defendant is concluded in this ■action upon an account stated.

If this account had been charged to Alexander alone, and stated to him, and he had retained the same without objection for the time indicated by the evidence, he would be deemed to have acquiesced in its correctness as to amount, and it would be presumptively binding upon him. Avery v. Leach, 9 Hun, 106.

But the referee finds that the letters “ & A. D,” the only thing in the account indicating that it was charged against Alexander D., was written over an erasure of the word “ Peck ” a significant fact, which the referee had a right to take into account in determining whether the original account was not in the name of George A. Peck.

Mor do we think that an account stated can be used for the double purpose of proving a partnership, as well as the amount of the claim.

All the cases seem to proceed on the theory, that if the account is stated between the proper parties to it, and assented to or retained so long that the assent or acquiescence in its correctness may

reasonably be inferred, that the party is concluded, in the absence of fraud, from denying its correctness, Lockwood v. Thorne, 11H. Y., 170, and if either party attempts to impeach the settlement and open the account for re-examination the burden of proof rests-upon him. Towsley v. Denison, 45 Barb., 490. But all this relates to the correctness of the account and not to the liability of the person in the form in which he is sued.

If an account is presented to one person charging him as liable, with some other person, as his partner we do not think that the-authorities go to the length that he will not be permitted to deny that relationship when sued upon the account.

If, therefore, as in this case, the proof fails to establish a joint, liability, the party to whom the account was presented would not, by reason of its retention without objection, be solely liable-on it, and if the partnership relation was not established, of course the firm would not be liable.

The appellant raises several .objections upon the evidence and insists that the referee erred in the receipt and rejection thereof on the trial.

We have carefully examined the various rulings and exceptions upon that subject, and find no error committed by the referee in the receipt or rejection of evidence for which this judgment should be reversed.

Judgment affirmed, with costa

Learned, P. J., and Landon, J., concur.  