The appellant raises two questions:
1st. That there is no evidence showing a copartnership obligation.
2d. That the court erred in allowing the plaintiff to be examined as a witness in his own behalf, as to transactions between himself and the deceased member of the defendant's firm.
As to the first objection, the evidence of the plaintiff is, that the application for the loan was on behalf of the firm. J.L. Conklin, the deceased member, wanted to borrow some money to use for the firm. He offered the note of the firm for the loan. The evidence is not very strong. It is capable *Page 63 of a construction, that the application was to lend to J.L. Conklin, but it is the natural inference, that the application was on behalf of the firm, as the firm wanted to use the money. I think the concluslon of the judge, that the money was borrowed for the firm, was warranted by the evidence.
As to the second objection, the action was tried in 1864, when the proviso of section 399 of the Code, prohibited the reception of the evidence of a party against executors, administrators, heirs-at-law, next of kin, or assignees of a deceased person, and allows the admission of the evidence of parties in all other cases.
The case was not within the proviso, as the section existed at the time of the trial.
The judgment should be affirmed with costs.
All concur except LOTT, Ch. C., who did not sit. Judgment affirmed with costs.