The opinion of the court was delivered by
Bennett, J.The only question, arising in relation to the report of the auditor, respects a single item of $45,70 in the account *237of the defendant. In relation to this it is found, that, in July, 1841, the plaintiff Miller was one of the firm of J. & A. H. Miller, and that one Otwin Milly was in their service, and that the firm agreed with the defendant to pay him, of the wages of Otwin Milly, five dollars per month; that soon after this the Millers dissolved, and the business was carried on by A. H. Miller, one of the present plaintiffs, and Otwin Milly continued in his service ; and that in March, 1842, the present plaintiffs went into partnership in the same business. In July, 1842, the defendant charged the amount due him of Otwin’s wages to the present plaintiffs; and during that month, or in August, both of the plaintiffs had notice that the charge was made to them, and that the defendant expected they would pay it to him out of their shop; and it appears that Miller subsequently solicited the defendant to take cabinet work out of their shop for what they owed him, and that the defendant did subsequently take up more than sufficient to balance this charge, upon the supposition, on his part, that he was taking it in liquidation of the charge.
Upon such a state of facts there can be no doubt but what the auditor was correct, in giving the defendant the benefit of the charge. No objection was made by either of the plaintiffs, when they had notice that the charge was made to them and that payment was expected from them. The defendant was requested by Miller to take up what the plaintiffs owed him, and the defendant took up more than sufficient to balance this item in the account, supposing the charge was thereby to be cancelled. It is competent for one partner, even, without the knowledge of the other partner, to deliver the partnership goods in payment of his private debt; but in this case, as the charge was ijiade to the firm with the knowledge of Dustin, and no dissent was expressed, it is to be taken that he assented to the delivery of the articles on the particular account, upon which the defendant supposed that he was receiving them.
The judgment of the county court is affirmed.