Opinion of the Court by
Judge Peters :This is an action in ordinary brought by appellant against appellee on an account for goods, and merchandise, hay, rye, shirts, barley, gas fixtures, and lumber sold, and delivered by him to appellee, and for money lent and advanced to, paid, laid out, and expended for him, amounting to the sum of $637.35.
*453On the trial no proof was introduced tending to establish an indebtedness in the manner charged in the petition; indeed, there was no evidence of an indebtedness on any account whatever, but there was evidence that appellee had contracted to improve a street in Newport, and had received therefor at different times specified sums of money, and had received as the last installment the sum of $1,087.43, and there was some evidence conducing to show that he had said appellant was his partner in the contract to improve said street. But whether he had advanced any money or performed any labor, or service, or was entitled to receive anything for advancements, or by way of profits he wholly failed to show. If there was in fact a partnership between the parties in relation to the improvement of the street, the action was not in the proper form to settle and adjust the accounts of the partners, and we perceive no error in the ruling of the court on the subject of instructing the jury.
Wherefore the judgment is affirmed.