
    John F. Cady, Respondent, v. William Kyle, Appellant.
    1. Partnership —Account stated — Admissions. — The admission by one of two partners of the correctness of an account stated against the partnership is sufficient in a suit against the firm on such account, even though for want of service the suit has been dismissed as to the partner making the admission.
    
      
      Appeal from Weston Court of Common Pleas.
    
    
      Milton Camjjbell, for appellant.
    I. The account is not itemized, a-nd is an insufficient foundation for an action. (Gen. Stat. 1865, p. 701, § 12; id. 661, § 38; Sess. Acts 1867, p. 133.)
    II. Unless this was an account stated between these parties there could be no recovery. The evidence shows that this account, or something like it, was presented to Faulkner, who made no objection to it. It was never presented to defendant. Faulkner’s silence on an account relative to mattérs with which Kyle had nothing to do, was not Kyle’s admission of its correctness.
    
      Doniphan Coburn, for respondent.
   Wagner, Judge,

-delivered the opinion of the court.

The plaintiff sued the defendant Kyle, together with one Faulkner, before a justice of the peace. Faulkner not being served with process, the case was dismissed as to him. The account was for making and repairing railroad ties, chopping-wood, and other work, and was for the sum of $140, with a credit of $65 paid thereon. Plaintiff had judgment before the justice, and the case being taken by appeal to the Common Pleas Court, judgment was again rendered in his behalf. The account was not particularly itemized, and objection was taken to it on that ground; but it was claimed that it was a stated account, and that it was presented to Faulkner, who was alleged to be a partner, and that he paid the credits and admitted its correctness. As to whether or not there was a partnership between Kyle and Faulkner was a matter in dispute, and upon the evidence the finding below was that there was such a partnership. We are inclined to the opinion that there is no valid objection to this finding. It was a matter wholly raised by the evidence, and the question is not presented by any instruction in such a manner as to authorize us to review it. If the account, when presented to Faulkner, was acquiesced in or assented to by him, the statement in its present shape is sufficient against the partnership.

The instructions given by the court, though not entirely exempt from criticism, are substantially correct, and could not have misled the jury. They are certainly sufficiently favorable to the defendant.

Judgment affirmed.

The other judges concur.  