
    C. N. Folsom, appellee, v. Walter E. Pailing, appellant, et al.
    Filed April 19, 1899.
    No. 8858.
    1. Set-Off: Partnership. A claim against a member of a partnership cannot be set off against a debt due the firm.
    2. Conflicting Evidence: Review. A finding based on conflicting evidence will not be disturbed on appeal.
    Appeal from the district court of Gass county. Heard below before Ramsey, J.
    
      Affirmed.
    
    
      George W. Ciarle and D. E. Barr, for appellant.
    
      C. S. Polle, contra.
    
   Norval, J.

This suit was instituted in the court below by O. N. Folsom to foreclose a mechanic’s lien on property of Walter E. Pailing, one of the defendants, and from a decree in favor of plaintiff Pailing prosecutes an appeal.

John Montgomery and Charles Stevens were partners engaged in the manufacture and sale of brick, and under an oral contract the firm sold and delivered to Pailing 44,600 brick, at the agreed price of $7.20 per thousand, to be used by the latter in the erection of a brick building on lot 361, in the village of Greenwood. At the time the contract was entered into Pailing was engaged in the mercantile business, and Montgomery, as well as Stevens, was indebted to him. Thereafter each purchased goods from the store on credit, and Pailing made certain cash payments on the brick. Subsequently Montgomery and Stevens filed a mechanic’s lien for $321.12, the total contract price of the brick, and then assigned the lien to plaintiff. The district court allowed Pailing credit only for the cash payments made by him, and disallowed, the amount of indebtedness due him from Montgomery and Stevens respectively. A. single question is presented for onr consideration, namely, did the court err in not allowing Pailing credit for the amount of the individual accounts of Montgomery and Stevens? Without a contract to that effect, the defendant had no right to set off against his debt to the firm his account against a mem-' ber of this firm. This proposition is so elementary as to make the citation of authorities in support thereof unnecessary. We have read the evidence and find that it is conflicting. That introduced by the plaintiff tends to show that no agreement was entered into between Pailing and Montgomery and Stevens that the former was to receive credit for the individual account of the members of the firm, or for the value of the goods subsequently purchased by Montgomery and Stevens respectively. As the evidence is sufficient to sustain the finding, the decree is

Affirmed.  