The objection now taken, that the parties in respect to the furniture were tenants in common, and that no action will lie by the plaintiff to recover the value of his interest in it, unless it has been sold or otherwise converted by his copartners, was not raised in the ease. The de*422fendants elected to go to trial upon the issue framed by the. pleadings, and it is now too late to avail themselves of any such objection. The defendants objected, when the case was submitted to the referees, that the plaintiff had established no demand against them, hut they put that objection upon the ground that all accounts and all joint interests had been settled, so far as the interests of the plaintiff were concerned.
It was alleged in the complaint, that there was a large' amount of furniture and fixtures on the 1st of April, 1848, belonging to the plaintiff and the defendants, sufficient to carry on a business of from eighty to one hundred dollars a day. That the movable fixtures and furniture were worth at least, upon that day, seven hundred dollars. The answer denies that there was an amount sufficient to do a business of from eighty to one hundred dollars a day, and denies that the movables, fixtures and furniture in the place were worth seven hundred dollars, &c. This is not a denial that there was furniture belonging to the parties left upon the premises that day, but it is merely a denial of its amount and value. The defendants then set up, that the movable fixtures and furniture upon the premises that day were in so bad a condition from having been worn out in the business, that they were removed from the premises, and their places supplied by new. This is an admission that there was furniture there upon that day, belonging to or that had been used in the business. The words of the answer are, “ the principal part thereof, having been worn out, &c., were removed.” That the furniture and fixtures were in the condition alleged is denied by the reply, and the only question, therefore, presented in respect to the furniture, was in regard to its amount and value. The amount and the estimated value of each item appeared by the books of the concern; and the referees, in determining the value of the plaintiff’s interest, determined it in the only way in which they could do from the evidence before them ; and if they erred at all, it would seem, from the liberal allowance they made, that they erred in the defendant’s favor. The defendants gave no evidence upon the subject of value, and the referees could do nothing but take the estimates they *423found in the books. If it was erroneous—if the value was less than was there stated—it is to be inferred that the defendants would have shown the fact.
The inventory taken of the stock, and the plaintiff’s receipt for his half of it, on the sale to him of the saloon, affords no presumption that the plaintiff had been paid for his interest in the furniture, or that it had been allowed to the defendants as an equivalent for the furniture originally contributed by them. All that appears in the case is the averment uncontroverted by the pleadings, that there was furniture belonging to the firm retained by the defendants after the dissolution. As before suggested, they do not deny that there was furniture upon the premises belonging to them and the plaintiff, nor that they retained the whole of it, as alleged and set forth in the complaint. The legal conclusion is, that the plaintiff is entitled to one half interest in it, and if the defendants desired to overcome the presumption of its amount and value appearing upon their own books, they should have given some evidence of its actual amount and value.
I fully concur with Judge Woodruff, that in the position in which the parties have placed the case by their pleadings, the matter may be treated as an appropriation of the furniture by the defendants to their separate use, so as to entitle the plaintiff to claim to be paid one half its value.
Judgment affirmed.