
    Baker v. Smith.
    Where the defendant pleaded a set-off, contracted by one whom he alleged to have been the partner of the plaintiff, averring also that the plaintiff had assented to it: Held, That although the evidence were not sufficient to render the plaintiff liable in the character of partner, it nevertheless proved his assent, and that that was sufficient to sustain the ver-
    Error from Busk. The plaintiff in error sued the defendant for goods sold and delivered. The defendant pleaded that he purchased the goods of one Van Horn, and that it was the agreement and understanding of the parties that the defendant should pay for them in lumber and hauling; that he after-wards learned that the plaintiff was the partner in business of Van Horn; that the plaintiff, knowing that Van Horn held himself out as his partner, and knowing also of the contract between Van Horn and the defendant, permitted the former to carry out with the defendant the contract by .receiving lumber under it, and that the defendant, in pursuance thereof, did furnish and deliver lumber to the plaintiff and Van Horn, the amount of which was shown by an account annexed to the answer.
    It appeared in evidence that Van Horn was not a partner of the plaintiff, but was his clerk, and that at one time iu 1S48 it was generally understood that they were partners. The plaintiff proved his account for goods sold the •defendant, commencing in 1848. The defendant also proved his account for lumber, and that the lumber was delivered to the wagons of the plaintiff and Van Horn, with the understanding on the part of the defendant that it was to go as a payment on his store account now in suit. The plaintiff’s witness, Van Horn, stated that in 1849 he furnished the defendant with a copy of the plaintiff’s account against him, “and requested him to make out his bill for lumber furnished to the order of either Baker (the plaintiff) or himself, and bring it in for settlement, which bill for lumber, either against Baker or himself, was to be credited or go as a payment upon defendant’s account», " " as per agreement between all the parties.” " ,
    There was a verdict and judgment for the plaintiff for his account, less the defendant’s account for lumber, and the plaintiff brought a writ of error.
    
      J. B. Armstrong, for plaintiff in error.
    
      Turner and Ector, for defendant in error.
   Wheeler, J.

It may be true that the evidence is not sufficient to render the plaintiff liable in the character of partner on the contract of Van Horn, but it does sufficiently establish bis assent to that contract. The evidence of Van Horn shows that he was a party to the agreement that the lumber delivered should be received as a.payment on the plaintiff’s account. The answer states that the plaintiff gave his assent to tire contract, and that is sufficient to bind him, though the averment of a partnership had been stricken out. It was enough that lie was cognizant of and assented to the understanding pursuant to which the lumber was delivered.

We are of opinion that the verdict was fully warranted by the evidence, and that the judgment be affirmed.

Judgment affirmed.  