
    Charles Anderson vs. Collin S. Tarpley.
    Where a debt was contracted with a firm, and one of the partners sued for it in his individual name, declaring on it as a debt due to him, the defendant can avail himself of the fact of the debt having been contracted with the partnership, only by plea supported by affidavit, (H. & H. 595.)
    
      Idem, if a firm sue for a debt due one of the partners, or an executor sue in his individual capacity for a claim due to his testator.
    If a claim be placed in the hands of two attorneys, practising in partnership, and before any steps are taken in the collection of the claim, the firm dissolve and one of the members take charge of the claim and render all the services in its collection, and sue individually the owner of the claim for his fees for so doing, the jury will be justified in inferring that it was part of the contract of dissolution between the partners, that the one who has rendered the services should attend to the claim and receive the compensation, and their verdict to that effect will be upheld.
    Where, in an action upon an open account for attorney’s fees, the jury render a verdict for the plaintiff; and at the trial the defendant offered a deposition proving part payment of the account sued on, which was rejected improperly by the court below; upon writ of error to this court by the defendant, held, that the judgment below should he reversed ; but upon the plaintiffs below entering a remittitur in this court of the amount proved by the deposition to have been paid, with interest up to the rendition of the verdict below, this court will render a judgment for the balance.
    In error from the circuit court of Pontotoc county ; Nathaniel S. Price, judge.
    Collin S. Tarpley, in September, 1842, sued Charles Anderson, in assumpsit, for the sum of $249 65, for attorney’s fees, and money expended in the collection of claims due Anderson. Anderson plead non assumpsit and payment; the jury brought in a verdict for Tarpley of $275 86.
    On the trial the plaintiff read the deposition of Richard C. Falkner; proved that he was clerk of the plaintiff during the time the account was contracted; that he had examined theaccount, believed it to be just and correct, and that it was still due by the defendant to the plaintiff; that he had charge of all the books, accounts and papers belonging to the plaintiff; that he always made the entries in the books, received and paid out nearly all his collections, and that he believed he recognized the amounts mentioned in the accounts, and remembered paying in person one of the heaviest items of the account; that the amounts paid out by the plaintiff were such as justly accrued against him in discharge of his charge of the business of the defendant, and as such needed no request to pay them, though he recollects well that Mr. Anderson requested the plaintiff to bring one of the suits, on which the execution was returned, no property found.
    This being all the evidence of the plaintiff the defendant read to the jury the letter of the defendant Tarpley, dated “ Clinton, Miss., 9th July, 1838,” directed to Mr. Charles Anderson, and signed C. S. Tarpley for Taylor & Tarpley, firm, John M. Taylor, late of Huntsville, Ala., and C. S. Tarpley, late of Florence, Ala. In this letter Mr. Tarpley acknowledged the receipt of the claims inclosed to him for collection, and promised to give them prompt despatch. The claims inclosed being the same that the fees sued on had accrued for.
    The defendant read another letter from Tarpley, September 26, 1838, in which he acknowledged the receipt of another note for collection, promised to obey the instructions of Anderson as to the currency, and stated that the Union Bank would go into operation on the next day, after which “ no man could have any excuse for paying in anything of less value than the notes of that bank.” The letter further states that Tarpley’s terms for collecting in all cases were five per cent, and if he had to expend any money in making the negotiations he always charged it to the holder of the claim. This letter was signed, “ your friend, O. S. Tarpley.”
    A third letter, signed Taylor & Tarpley, dated, Clinton, 24th November, 1838, acknowledging the reception of another claim for collection, was also read.
    The defendant read another letter, dated 20th March, 1839, stating the progress of the suits and condition of the various claims. This letter was signed “ G. S. Tarpley, for R. C. Falkner.” To this letter was the following postscript: “P. S. Taylor and Tarpley have dissolved.”
    A fifth letter, signed “ C. S. Tarpley,” dated 23d January, 1840, in which, after stating the progress of the claims, Tarpley adds of one of the debtors to Mr. Anderson, “he proposes to pay the amount in the notes of the Union Bank, due next spring; it is the best and almost exclusive currency of this country at present. From your particular instructions I cannot receive it, and nothing else can be collected. Now say, will you or will you not receive this money ? I shall be governed by your answer, and only beg leave to add, you must take this or get nothing.”
    The defendant read a sixth letter, to himself, dated 26th March, 1840, signed, O. S. Tarpley, in these words, “under your instructions the money has been paid by Mr. Tupper, in the Union Bank. Inform me what disposition I shall make of the money and it shall be attended to.”
    The defendant read three other letters from Mr. Tarpley, which gave the history and progress of the suits in his hands, and also stated the value and condition of Union Bank money at the different periods of his writing, and advising Mr. Anderson to hold on to what he had received, as it would doubtless eventually be all collected.
    The last letter from Tarpley was dated July 8th, 1841, and contained his account against Anderson, which was a duplicate of that sued on, and requested payment to be made immediately.
    The defendant offered to read to the jury the deposition of J. M. Dyer, which proved the payment of fifty dollars to an agent of the plaintiff, on a note of Dyer’s which the defendant had sent to the plaintiff for collection. This deposition was taken by consent; the plaintiff objected to its being read, and the objection was sustained and the deposition excluded. The record shows no reason for its exclusion.
    John Colham, for defendant, testified that in March, 1840, Union Bank money was at a discount of twenty per cent.
    
      On the part of the plaintiff, John H. Rollins proved that Tarpley had collected one of the debts from himself and partner, the one paid in Union money, and that the fee charged for its collection was the usual fee in such cases.
    The plaintiff read also a letter from the defendant Anderson, expressly authorizing him to receive the notes of the Mississippi Union Bank in payment of the claims in his hands for collection.
    On this proof the verdict was rendered, and the defendant below prosecutes this writ of error.
    No counsel appeared for plaintiff in error.
    
      George IS. Yerger, for defendant in error.
    We assume that, notwithstanding some of the bills and notes mentioned in the account were put in Taylor & Tarpley’s hands for collection, yet that by the terms of the dissolution, Tarpley was entitled to fees and commissions subsequently brought, alone, and of this fact the plaintiff was informed, and assented to it, and that the jury were justified in finding the verdict they did from the evidence.
    If this is not proved by direct or express testimony, it is satisfactorily proved by circumstances.
    The bills or notes, or some of them, were put into Tarpley’s hands before the dissolution, but the services were rendered after-wards by Tarpley, as the account proved by Falkner shows.
    The defendant Anderson was notified that the partnership was dissolved, and after that time the letters and correspondence show that Tarpley alone was looked upon as the attorney of Anderson.
    1. It is expressly proved by Falkner, who lived with Taylor & Tarpley, and with Tarpley, that the account is correct and is due to Tarpley.
    2. Anderson read in evidence several of Tarpley’s letters, which show and recite letters from Anderson to him individually, and recognizes him as his attorney.
    
      On the 8th July, 1841, Tarpley writes to him and incloses his account, setting out the items, and requires a remittance.
    The account is made out in his own name, is returned without objection to items or anything else, until September, 1842, one year and two or three months, when suit was brought.
    Rollins also proves that the business done with him for Anderson, was by Tarpley alone.
    In December, 1839, after the dissolution of partnership, Anderson writes to Tarpley, recognizing him as his attorney, &c., and wishing to know how he, Tarpley, is getting on with all his business. 2 Starkie’s Ev. 20.
    In regard to the deposition of Dyer, if it was erroneous to exclude it, the effect of receiving it would be only to reduce the verdict $50.
    A remittitur may now be entered for that amount, if the court believe it was error to reject it. 4 Yerg. R. 565; 6 lb. 333; 4 Maulé & Selw. 94.
    When a person to whom an account is sent, keeps it for any length of time without objection, it is an admission of its correctness as a stated account. Greenl. Ev. sec. 197, and notes.
    So an attorney’s bill rendered, and not objected to, is evidence for the consideration of the jury. Greenl. Ev. sec. 212; 1 B. & P. 49.
   Mr. Justice Clayton

delivered the opinion of the court.

Taylor & Tarpley were partners in the practice of the law, and during that time the plaintiff in error sent several claims to them for collection. On the dissolution of the partnership, these claims all passed into the hands of the defendant in error, who individually gave his attention to them, and rendered all the services in regard to them. The account was made out in his name individually, and the suit was brought in the same way. Taylor does not appear to claim any interest in the matter. The existence of the partnership, at the time the claims were sent for collection, is fully shown, as well as its dissolution before the services were rendered. A verdict was found for the plaintiff.

The plea was the general issue. Only one exception was taken during the trial, which was to the exclusion of a deposition. No charge was asked or given. A new trial was moved for, which was refused, and a bill of exceptions then also taken.

To question the character in which the party sued, a plea should have been filed under oath. H. & H. 595. If a firm should sue for an individual claim, that would clearly be the rule, and on principle it must be the same, when an individual sues for an alleged partnership claim. So if an executor sue in his individual capacity for a claim due to his testator.

The verdict is correct also in another point of view. The right of the plaintiff to compensation rested not upon the reception of the claims for collection, but in services rendered in effecting that object. If these services were rendered by Tarpley alone, if the claims remained in his hands after the dissolution, with the consent of Taylor, the jury might fairly infer from the testimony, that it was a part of the contract of dissolution, that Tarpley should attend to these claims, and receive the compensation for so doing.

An exception was taken during the trial to the exclusion of the deposition of J. M. Dyer; there have been no objections pointed out to it, and upon examination we do not discover any. For this reason the judgment must be reversed. The payment established by the deposition rejected is'fifty dollars on the 20th December, 1839. The defendant in error now offers to remit here that sum with the interest. Upon his doing so, this court will render a judgment for the balance, that being the amount for which the judgment below should have been rendered. The interest upon the amount paid to be computed till the rendition of the verdict in the court below. H. & H. 618.

Judgment reversed.  