now, ho ever, that in such partnerships there is usually no delectus persona, and from this difference many peculiarities arise, the principal of which is that the partnership is not dissolved by the death of a partner, nor as a consequence of a sale of an interest by a partner to a stranger. As, therefore, the sale of an interest to Seligman did not dissolve the partnership, I think by his purchase he presumptively became a partner, although he took no part in the management of the partnersh p affairs, and never held himself out to the world. as a partner.

The action is brought upon a contract by which the plaintiff bound himself to erect a mill for the defendants. The contract is in writing, and purports to have been made by the defendants by their firm name, through James K. Byrne, their secretary. It was proven that the contract was authorized at a meeting of the company, and, after it had been signed by the secretary, was ratified and approved in the same way. There were no written regulations or by-laws adopted for the government of the company, but it was shown that they usually did business in this way. A majority of the shares at a meeting of the company authorized contracts to be made, and the minority always acquiesced. I think this shows a recognized and established usage on the part of the firm which must be taken as a part of the contract of partnership.

The defendants Castle and Seligman pleaded a former re. covery in bar, and, on the trial, introduced the judgment roll of a former action brought by the same plaintiff against the same defendants. In his complaint in the first suit the plaintiff recited the fact of the contract to erect a mill for crushing rock, the performance of the contract on his part, and the non-payment of the contract price, and then averred an account stated between plaintiff and defendant, the ascertainment of a balance due, which was less than the contract price, and the promise on the part of defendants to pay that sum.

The defendants, in their answer, denied specially each allegation of the complaint. Judgment was for the defendants, but it does not appear upon what grounds. No evidence upon the subject was offered by either party, save the judg ment roll, and the admission that the contract sued upon in this action was put in evidence upon the former trial.

Unquestion bly the judgment in the former action is well pleaded as a bar in this suit, provided the cause of action is the same, although the form of action has been changed. The cause of action is said to be the same where the same evidence will support both actions; or, rather, the judgment in the former action will be a bar, provided the evidence necessary to sustain a judgment for the plaintiff in the present action would have authorized a judgment for the plaintiff in the former. The present action could be maintained upon proof of the contract and performance on the part of plaintiff, and non-payment by de. fendants. This proof would not have sustained the former action. That was founded on the account stated and the agreement to pay the balance ascertained, and not upon the original contract: Carey v. P. & C. Petroleum Co., 33 Cal. 694.

Judgment and order affirmed. Mr. Justice CROCKETT did not participate in the foregoing decision.

CRATER V. BININGER.

(45 New York, 545. Court of Appeals, 1871.)

Suit by partner upon note of copartner. C., B. and S. with others composed a joint stock association, unincorporated, and known as the Oil Creek Petroleum Company. B. and S. were the active managers of the association, and, for the purpose of raising money to pay off certain company indebtedness, B. executed a promissory note to the order of S., which S. indorsed and which was discounted by a bank in New Jersey, and upon its maturity was paid by C., to whom it was transferred. C. then brought suit against B. upon the note: Held, that the note was not a partnership note, and the fact that the money raised upon it was applied to the payment of debts of the association, presented no obstacle to the suit by C.

1 Partner against partner upon segregated item of demand. An action by one partner will lie against his copartner, if the contract, though relating to the partnership business, is separate and distinct from all other matters in question between the partners, and can be determined without going into the partnership accounts.

'Bean v. Gregg, 7 Colo. 499.

· Verbal agreement to vary note. In a suit by one partner upon a note executed by his copartner the defense was that the plaintiff agreed, at the time of the making of the note, to provide for and pay one third thereof, if the company should not be in funds for that purpose when it became due: Held, that the facts if proved would not constitute a defense; that it would be incompetent for the defendant to vary the terms of the note, or relieve himself from liability thereon, by evidence of a verbal agreement made before or at the time of making the instrument.

Appeal from the judgment of the general term of the Supreme Court, in the First Judicial District, affirming the ́judgment upon a decision of the judge without jury, in favor of the plaintiff.

The action is against the defendant as maker of a promissory rote to the order of and indorsed by one Sanger. The plaintiff, defendant, Sanger, and several others, composed a joint stock association (unincorporated), known as the Oil Creek Petroleum Company. In their operations the company became indebted to their agents and employes, and this note was made for the purpose of raising money to pay off the indebtedness of the company, and was discounted by a bank in New Jersey, and on its maturity was paid by the plaintiff, to whom it was transferred. The defense was that the plaintiff agreed, at the time of the making of the note, to provide for and pay one third thereof, if the company should not be in funds for that purpose when it became due. Some evidence of such an agreement was given by the defendant. The cause was tried by the court without a jury, and judgment was given for the plaintiff, which was affirmed at general term of the Supreme Court.

SIMEON E. CHURCH, for the appellant; cited Ives v. Miller, 19 Barb. 196; Francisco v. Fitch, 25 Barb. 130; Sherwood v. Barton, 36 Barb. 284; Traders Bank of Rochester v. Bradner, 43 Barb. 379; Freeland v. Van Campen, 1 Keyes, 39; 2 Abb. Dec. 184.

SAMUEL HAND, for the respondent; on the question that parol evidence could not vary the note: Chitty on Bills, 47; Hoare v. Graham, 3 Camp. 57; Rutand's Case, 5 Rep. 25; Parsons on B. & N., Vol. 2, p. 501; Sice v. Cunningham, 1 "Braly v. Henry, 11 Pac. 385.

Cow. 397; Babson v. Webber, 9 Pick. 163; Eaves v. Ilenderson, 17 Wend. 190; Ely v. Kilborn, 5 Den. 514. Upon the question of the note being to raise money for partnership purposes: Gridley v. Dole, 4 N. Y. 486; Van Ness v. Forrest, 8 Cranch, 30.

ALLEN, J.

The defendant and Sanger, the indorser of the note in suit, were the active promoters and principal managers of the company for whose benefit it is claimed the note was made. The other associates, including the plaintiff, appear to have had but slight personal connection with the business of the association. There is no evidence that the plaintiff was at any time a party to the note as indorser, or otherwise. His agency was confined to the discounting, or the procuring the same to be discounted by a New Jersey bank. If there is any evidence that he underto k to provide for or pay any part of the note, it is very slight. The only witness to the fact is the defendant, and after stating very generally that he understood that himself, Sanger and the plaintiff should take care of the note, but without being able to refer to any conversation with the plaintiff from which he formed his opinion, he finally said: "I will not swear positively that Mr. Crater said he would pay one third of the note, but I understood Sanger so, and it was implied that we three were to take care of the note," and there left it. The evidence came very far short of proving any agreement by the plaintiff to relieve the defendant from the liability he assumed as maker of the note. The judge, upon the trial, with the assent of the parties, discharged the jury and himself decided the issues of fact and law. He does not find that an agreement was made by the plaintiff as alleged, nor was there any request to find such fact, or exception to the refusal or omission to pass upon the question. Neither is there any fact found showing any connection of the plaintiff with the origin or consideration of the note, or any business relation or connection between the plaintiff and defendant. The judge merely finds the making of the note by the defendant, and the indorsement thereof by the payee to the plaintiff before maturity, and for value and amount de

and unpaid thereon. But if the facts alleged had been proved upon the trial and found by the judge, they would have constituted no defense. It was incompetent for the defendant to vary the terms of the note, or relieve himself from liability thereon, in whole or in part, by evidence of a verbal agree ment made before or at the time of making the instrument: Ely v. Kilborn, 5 Denio, 514; Eaves v. Henderson, 17 Wend. 190.

The relation of the parties to each other as partners with others, in connection with the fact that the note was made for the business purposes of the partnership, and that the money realized from its discount was applied to the payment of the debts of the association, presented no obstacle to an action upon the note by the plaintiff, who had advanced the money upon the credit of the parties to it. The note was not a part. nership note; it was not given by or to the firm. It was given by one member of the partnership to another, upon a good consideration, and an action upon it did not involve an examination of the partnership accounts. In Van Ness v. Forrest, S Cranch, 30, it was held that a promissory note given by one member of a commercial company to another member for the use of the company, would maintain an action at law by the promisee in his own name against the maker, notwithstanding both parties were partners in that company, and the money when received would belong to the company. A case in more close analogy to this, as the facts are claimed by the defense, is Gridley v. Dole, 4 N. Y. 486. There one of two partners, after dissolution of the copartnership, had advanced money to the other to be applied in payment of the partnership debts, taking a promissory note for the money advanced. Evidence of a contemporaneous verbal agreement that the note should be paid out of the effects of the firm, and if such effects were not sufficient, then that the lender shou'd pay a portion of the note, was held inadmissible. An action will not lie by one member of a partnership against another upon an implied promise, and if the plaintiff had paid the demands against the firm he could not have maintained an action against his associates upon the implied promise to repay him; but one partner can maintain an action against his copartner upon an express promise, although connected with the partner