This is an action on a promissory note by the payer against the makers, the defence to which is that the note was given for a like sum in Confederate notes, deposited by plaintiff with one of defendants at their store. This defence is fully established by. the evidence; but plaintiff's counsel contend that there were two distinct contracts, having-different obligations and parties; first, a contract of deposit with one of the firm; second, a note or unconditional promise to pay a sum of money made by the firm in favor of plaintiff, and that the first was executed and merged in the second.
The evidence does not sustain this position; and even if there were the two contracts, as urged, we could not, under our jurisprudence as now definitely settled, enforce the second, because made with a knowledge of the illegal consideration, the knowledge of one partner being the knowledge of the copartners.
It is therefore ordered, that the judgment of the District Court be reversed, and that there be judgment in favor of defendants, yith costs in both courts,