#### M'Kee & M'Elhenney *v.*Moses Stroup.

Though a debt due by one partner cannot be set off against a demand due to the partnership, yet when one is indebted to a* partnership, and during the existence of it delivers flour, bacon, or other articles, to *one*of the partners, which it is understood between them shall be received in payment of the partnership demand, the debtor is discharged on the ground *oí payment;*and the circumstance that the articles were applied to the individual use of the partner receiving them, does notvary the case.

*Before EVANS, I, at Union, Spring Term,*1839.

The report of his honor the presiding judge, is as follows:

“ The plaintiffs were merchants and sued the defendant on an account for goods sold and delivered. The defence was a discount *292for flour, bacon, &c., which the defendant sold to M’Elhenney.— M’Elhenney acknowledged the receipt of the flour and bacon. He said he was to give credit on the account for the flour. In relation to the bacon nothing was said; but it was his own calculation that it was to be paid for in the same way. He expected to have a settlement, and intended it to go in payment of the account. I thought from this evidence, it was understood between the parties, that the bacon and flour were to be received, and in fact were received in payment of the account; and, therefore, although furnished for the private use of one partner, was a payment of the account.”

The plaintiffs now moved this court to reverse the decision of the circuit court and for a new trial, on the following grounds:

1. Because the court admitted in evidence and allowed a discount of defendant, the said discount being an account of defendant’s against W. H. M’Elhenney alone, (who was one the firm of M’Kee & M’Elhenney,) the said firm having been long since dissolved, and the said M’Elhenney hot authorized to collect and settle the debts of the same after dissolution thereof.

2. Because the account, as stated in defendant’s discount, not having been actually settled before the dissolution of the copartnership, should not have been allowed by the court to be set off as a discount to an action brought by the firm against defendant.

3. Because the court allowed defendant’s discount against the firm, where, from the evidence, there was no proof of a positive agreement to settle defendant’s account against the claim of the firm.

4. Because there was no evidence to support defendant’s claim against the firm, except the testimony of W. H. M’Elhenney, one of the copartners of the firm, (which could amount to nothing more than the acknowledgment of one copartner made after dissolution,) that *it*was understood by him (M’Elhenney) that his individual debt, due to defendant, should be settled by discounting it against the debt due by defendant to the said firm; which was not sufficient to discharge defendant from paying the said debt due to the firm.

*293*Matthew Williams,*for the motion.

*Dawkins,*contra.

Curia, per Evans, J.

There is no doubt that a debt due by one partner, cannot be set off against a partnership demand, and I apprehend that a mere promise of one partner to accept his own debt as a payment, or a discount, does not bind the other partners. — ■ But it never has been questioned that one partner, during the existence of the partnership, may receive payment from a debtor, in flour, bacon, or any thing else, and the circumstance that such articles were applied to his own use, cannot vary the case. On the trial of this case, M’Elhenney was sworn as a witness to prove the plaintiffs’ demand. On his cross examination, he said there was an agreement that the flour was to be credited on the account.— When the bacon was afterwards delivered, there was no express contract that it was to be received in payment, but his understanding was, it was to be paid for in the same way as the flour, and he intended it to go in payment of the account. I had no doubt then, nor have I any now, that when the bacon was delivered, it was understood by both parties that it was in payment of the account. It was on the ground of payment made during the existence of the partnership,- and not on the ground of discount, that I decreed for the defendant.

My brethren concur in that opinion — and the motion is refused.

O’Neall, Earee and Butler, Justices, concurred.