Opinion by
William W. Porter, J.,The amendment made of the statement of claim by the permission of the court was certainly broad. It permitted the introduction of proof on the trial which might otherwise have been excluded. The question, however, arises whether advantage can now be taken of the character of the amended statement. The allowance of it was within the power of the court below. The right to amend was with the plaintiff. The amendment did not change the cause of action. The leave given to amend is not such a final order as may be separately appealed from. Nor was attempt made to appeal. The action of the court was excepted to, but was not made the subject of alleged error in this court until the review of a trial held more than six months after amendment made. The form of the amended pleading might have been attacked by demurrer, but no demurrer was filed. The cause went to trial on the statement as amended. This cured the defect in the pleading, if defect existed. We, therefore, do not sustain the first assignment of error.
This action was originally brought against the firm of Fair-child, Grace & Co., but service of the writ was had only on A. C. Fairchild and George Grace. The trial judge said to the jury that they were sworn to try a case “ against A. C. Fairchild, Y. W. Grace, George Grace and S. G. Dye, late partners, trading as Fairchild, Grace & Co.” Strictly this was not the fact, since but two of the defendants had been served. But the liability sought to be imposed upon the two defendants was not individual, but growing out of the partnership of which they were members. We do not think any injury was suffered by the defendants by reason of the accidental misstatement of the trial judge. It is therefore not an error for which we can reverse. This disposes of the ninth assignment.
In view of what has been said in regard to the amended statement and the form of action in which the defendants are sought to be charged, we are of opinion that the second and seventh assignments cannot be sustained. The mouths of the immediate parties to the litigation having been sealed by the death of the plaintiff, the evidence supplied by the depositions *219was admissible to charge the members of the partnership with a debt contracted on behalf of the partnership by any of the partners in the ordinary course of business.
The remaining assignments (save the tenth and twelfth) relate to the admission in evidence of a memorandum which was given to Barker in the following form: •
“G. S. Barker:
“ 23,908 pounds Onions @ 80, $189.65.
“10 — 31—S. G. D. This is O. K.
“ Correct “ V. W. G.
“S. G. D.”
This was not a hook entry. The character of the document is clear when the initials thereon are explained by testimony to be those of two of the partners of the defendant firm. It was in the nature of an admission of indebtedness, and was properly admitted.
The statement made by the trial judge (the subject of the tenth assignment) is supported by the testimony. The witness, Wilson, testified that he was with Barker “ about the first week in October, 1891, when he sold to said firm something over 20,000 pounds of onions. I was also present with both George S. Barker and members of the said firm after the delivery of the onions, and on several occasions when they acknowledged having received said lot of onions, and that they had not paid for them.” The tenth assignment is dismissed.
The learned counsel for the appellants has presented his case with earnestness and ability, but he has not convinced us that any reversible error has been committed by the court below.
The judgment is, therefore, affirmed.
April 17, 1899. Motion for a reargument refused.