The plaintiffs and defendant entered into a partnership venture for the purchase and sale of wool; and the plaintiffs claim that the enterprise resulted in a considerable loss, which was borne by them exclusively; and this action is brought for a Settlement of the partnership accounts, and to enforce payment by the defendant of his share of the loss. The answer denies that the venture resulted in a loss. On the contrary, it claims that there was a large profit, which the plaintiffs received, and for which they have not accounted. It appears, from the written agreement between the parties, that the wool was to be sold by the plaintiffs in the San Francisco market, or. to he forwarded “ to suitable Eastern markets for sale, as may appear best to both parties to this agreement.” On the trial the plaintiffs offered to prove that a large portion of the wool was shipped by them to Boston, and sold in that market, and that these sales resulted in a loss. The defendant objected to this proof, on the ground that there was no allegation in the complaint that the wool was shipped to Boston for sale with his consent; and he claimed that without such an averment the proof was inadmissible, inasmuch as it appeared by the agreement that the plaintiffs had no right to ship the wool to an Eastern market, except with the consent of both jparties. I discover no force in this objection. Even though it had been expressly admitted on the face of the complaint that the wool was shipped to Boston without the consent of the defendant, and in violation of the contract, the plaintiffs would, nevertheless, have been entitled to a settlement of the partnership accounts, on such terms as might be just and equitable; but the defendant, in that event, would have .been entitled, as a matter of defense, to show that he had suffered loss by reason of this violation of the *122contract, and to charge the plaintiffs with it. But it certainly was not necessary to aver in the complaint that the plaintiffs had violated the contract in this respect; hut that was a proper matter of defense to he set up by the defendant. The Court, therefore, did not err in admitting the proof. The only -other error assigned is that the evidence does not support the judgment in favor of the plaintiffs. There was included within the issues the settlement of the entire partnership accounts between the parties, including all the sales and disbursements during the venture. It appears clearly from the evidence, which is in no respect contradictory on this point, that a portion of the wool was sold by the plaintiffs in San Francisco, at a profit, and there is no proof whatever in the cause that the plaintiffs at any time, or in any manner, accounted to the defendant for his share of this profit. The judgment appears to ignore entirely this portion of the partnership transaction; and the judgment against the defendant is for his share of the losses incurred by reason of the sales made in the Boston market, without crediting him with any sum on account of the profits realized from the sales at San Francisco. If the San Francisco sales had been accounted for by the plaintiffs to the defendant, leaving nothing to be settled in respect to that part of the transaction, it was incumbent on the plaintiffs to show that 'fact at the trial; and this they failed to do. The attention of the District Court was explicitly called to this point by the defendant, on his motion for a new trial—this having been assigned as one of the grounds on which the evidence was insufficient to support the judgment—and the defendant’s answer notified the plaintiffs that this ground of defense would be relied upon at the trial. The Court, therefore, erred in denying the motion for a new trial.
Judgment reversed, and cause remanded for a new trial.
Heither Mr. Chief Justice Rhodes nor Mr. Justice Sprague expressed any opinion.