#### Edward Vernon, Respondent, *against*James A. Simmons, Appellant.

(Decided December 2d, 1889.)

Evidence that plaintiff sent to defendant two accounts, one for moneys expended and the other for services rendered, inclosed with a letter demanding payment, which were retained without objection or reply, and that subsequently defendant, on meeting plaintiff, acknowledged receipt of the letters and promised to pay the accounts, will sustain an action as upon an account stated.

Where, in an action on an account stated, the court allows, over defendant’s objection, proof of an item outside the account, defendant cannot raise such objection on appeal unless he duly excepted to the action of the court in submitting such item to the jury.

The use of a firm name upon letter paper by plaintiff, at defendant’s request, to help plaintiff get contracts for defendant, under arrangements by which plaintiff was to receive a share of the profits as his compensation, a new agreement being made for every contract, and the lease of an office to the parties jointly for business purposes, do not establish a partnership relation.

Appeal from a judgment of the General Term of' the City Court of New York affirming a judgment of that court entered upon the verdict of a jury and an order denying a motion for a new trial on the minutes.

The facts are stated in the "opinion.

*400*Olcott,*Mestre, & Gonzalez, for appellant.

*J. Douglass*Brown, for respondent.

J. F. Daly, J.

The plaintiff sent to the defendant, on or about August 26th, 1884, two accounts, one for moneys laid out, showing a balance of $293.13, and one for services, amounting to $500, inclosed in a letter demanding payment of these sums. The defendant retained the accounts without objection or making any reply, and subsequently, on meeting plaintiff, acknowledged the reciept of the letter, and said that he had no money to settle the account but would pay it as soon as he could. This proof was sufficient to sustain an action upon an account stated, and although the defendant swore that he never had any such conversation with plaintiff, the case was proper for the jury,and the verdict in favor of the plaintiff upon the issue of fact cannot be disturbed. The appellant, in his brief upon this appeal, ignores the evidence of express promise to pay the account as rendered, but such a promise is directly sworn to by plaintiff.

The account so sent to' defendant did not include an item of $125 for money paid out for defendant prior to the time of rendering the account. This item was included in the bill of particulars annexed to the complaint and is part of the demand in the pleading. It was proved under the defendant’s objection. That objection was a good one at the time, but it should have been followed up by a request to the court to exclude the item from the consideration of the jury; instead of doing so, the defendant permitted the court to submit to the jury, with the items of the account, this item of $125, with the evidence for and against it, without objection,and having, done so, he cannot now claim error in that regard. The City Court in its discretion, upon the motion for a new trial, might have reversed the judgment upon this ground, but in the absence of an exception to the charge upon this point, we cannot do so.

The principal contention in the case arose upon the defense that the parties were copartners and that the matters sued for *401were part of the copartnership transactions, and that no settlement of such transactions liad ever been had. The plaintiff denied the copartnership, and the jury believed him, although defendant affirmed the contrary, and several witnesses swore to plaintiff’s admissions*TM that regard, and there was uncontradicted evidence of the use of the firm name on letter-paper and in correspondence, and evidence of a lease to the parties jointly of an office for business purposes. The plaintiff explained that the use of the firm name upon the letter-paper was at defendant’s request, he saying that it would help him to get contracts; and plaintiff, while still denying that any partnership was agreed upon, admitted that be supposed he was to receive an interest in contracts obtained by defendant. What that interest was we can judge by one transaction, by which an interest in a contract was given by plaintiff to defendant. By an instrument in writing dated August 20th, 1884, at about the close of the relations between them, the defendant assigned to the plaintiff, in consideration of one dollar and “ for services rendered,” “ one half part or portion of the net profits accruing to the defendant from the contract entered into • between him and one John S. King jointly, with the Ohio River &' Lake Erie Railroad Company, for the building of the road from Greenville to a connection with the Nickel Plate Road.” From the,-language of this instrument it is manifest that the plaintiff did not receive the one-half share of the profits as profits, but as compensation for services only. This piece of proof, therefore, though introduced by defendant to prove a copartnership, did not prove it, but the contrary. It also appeared from the testimony of plaintiff that, when he applied for an interest in the other contracts, the defendanttold him that a separate agreementmust be made for each transaction. This was not denied by defendant, and is quite satisfactory evidence that no general, nor in fact any, copartnership agreement existed between them. . In addition, it appears that when, some eighteen months after the accounts were rendered to defendant, the plaintiff wrote to him offering, as he was “ very hard up,” to receipt in full for all demands if defendant would send him $125 in cash, and a *402note at three or six months for a similar amount, saying that it was “ settling at about twenty-five per cent on the dollar,” the defendant in a written reply said that he was sorry to sa3r that he could not comply with the request, if he could he would cheerfully do so ; and nowhere in his letter makes any suggestion of any unsettled copartnership accounts between them.

It is not surprising that the jury, upon all this evidence, found that there was no copartnership.' There was not onty nothing in the testimony which was conclusive against plaintiff’s claim, but on the whole evidence submitted to the jury, they might property find as they did, that the parties were not and had never been partners.

The fact that the plaintiff was contradicted by several witnesses and by certain circumstances, including acts and alleged admissions of his own,' might be ground for the General Term of the City Court for ordering a new trial if they thought that the plaintiff’s version was not corroborated by facts proved in the case ; but we, as an appellate tribunal, cannot disturb the verdict on'that ground if we would, there being sufficient evidence in the case to sustain the verdict. This is not a case where there is a mere conflict of oath against oath of plaintiff and defendant on the promise to pay; the plaintiff is corroborated by the letter of defendant to which 1 have referred above.

There is no error in the charge. The defendant’s case was most fully and fairly submitted upon his requests.

The judgment and order should be affirmed, with costs.

Larremore, Ch. J., and Van Hoesen, J., concurred.

Judgment and order affirmed, with costs.