The only question of fact tried, and submitted to the jury was, whether the plaintiff or her husband was the partner of the defendant, in the transaction out of which the money sought to be recovered, arose. There was no dispute as to the amount to which the defendant’s partner, whichever one it was, ought to have from the defendant. The money was all in the defendant’s hands, the account had been settled and adjusted, and the respective proportions of each partner ascertained and agreed upon. The jury found, upon the evidence before them, that the plaintiff was the partner in the transaction with the defendant, and in this they were fully warranted by the evidence. It is claimed on the part of the defendant, that even if the parties were partners, this action cannot be maintained on the complaint, which is for money had and received by the defendant to the plaintiff’s use, only. The objection to the form of the action is not well taken. When one partner becomes liable to his copartner, in an action at law, for the portion of part*66nership funds in his hands, belonging to such copartner, the form of such action is properly for money had and received by the defendant to the use of the copartner. (Coffee v. Brian, 3 Bing. 54. Brierly v. Cripps, 7 Car. & Payne, 709.) In both these cases, it was held that this action could be maintained between partners, when the partnership had been closed, and the balance struck, as was the fact here.
The cases in this State are quite uniform in holding that there must be not only a settlement, but an express promise to pay, before an action at law, by one partner, to recover his share of the partnership moneys, against another partner, can be maintained.
But this question of the necessity of an express promise does not seem to have been raised by the defendant, in any part of the case. In the motion for the nonsuit, the ground was merely general, that the proof failed to establish the cause of action set forth in the complaint. In what particular there was such failure of proof, was not pointed out or suggested. There was no exception to the charge of the judge, and no request to charge differently, in any respect, from what he did charge. The charge was that the plaintiff was entitled to recover her share, as ascertained by the settlement, and balance struck, if she was the partner of the defendant in the transactions by which the money was. produced. The case seems to have been tried wholly upon the issue whether the plaintiff, or her husband, was the defendant’s, partner in the business, As the defendant’s counsel took no exception to the charge, he must be deemed to have acquiesced in that view of the case, and cannot object or except now/ Had he raised the precise question then, or at any other stage of. the trial, the charge might have been different, or other evidence on the subject of an express promise might have been given. At all events, the question would then have been *67distinctly presented, which the defendant’s counsel seeks to raise now upon the argument, whether an express promise is necessary in order to maintain an action for money had and received, between partners, in a case like this, where the partnership has been terminated, and the account has been settled, and the balance belonging to each partner struck. But that question was not presented upon the trial, or considered. As the verdict of the jury was according to the very right of the case, upon the facts found, the judgment will not be disturbed on any question of form, when there is no exception involving any error in matter of law.
[Monroe General Term, March 7, 1870.The evidence offered by the defendant in relation to the fraudulent assignment by the plaintiff*’s husband, was properly excluded. It was wholly irrelevant. The defendant was in no situation to litigate that question in this action. It was of no sort of consequence how the plaintiff obtained her share of the funds, which went into, and constituted part of, the bulk of the partnership funds, if she did not obtain it from the plaintiff.
The verdict and judgment are right, and the judgment should be affirmed.
Johnson, P. J., and Dwight and E. Darwin Smith, Justices.]